All Contracts
- Terms of Service
- User Agreement
- Privacy Policy
- Privacy Center
- API Terms of Use
- Cookie Policy
- Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Fixed-Price Escrow Instructions
- Freelancer Membership Agreement
- Proprietary Rights Infringement Reporting Procedures
- 'Upwork Team' Software License Agreement
- Starter Project Program Terms of Use for Clients and Freelancers
- Team Builder Terms for Clients
- Terms of Use
- Upwork Escrow Inc.
- Upwork Payroll Agreement
- WEWORK CLIENT ADDENDUM FOR UPWORK ENTERPRISE SERVICES
- Mark Use Guidelines
- Optional Service Contract Terms
- Data Subject Access Form
- Global Data Processing Agreement
- Independent Contractor Agreement
- Master Subscription Agreement (Enterprise Standard)
- Jumpstarter Projects Program Terms of Use
- Master Subscription Agreement (Compliance)
- Upwork Digital Accessibility Statement
- Upwork Direct Contracts Terms (BETA)
- Direct Contract Escrow Instructions
Terms of Service
Effective November 14, 2019
DownloadTable of Contents
- User Agreement
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- Site Terms of Use
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Upwork Direct Contract Terms
- Upwork Mark Use Guidelines
- Optional Service Contract Terms
Effective May 20, 2018 to November 14, 2019
DownloadTable of Contents
- User Agreement
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- Site Terms of Use
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Upwork Mark Use Guidelines
- Optional Service Contract Terms
Effective April 20, 2018 to May 20, 2018
DownloadTable of Contents
- User Agreement - effective until May 20, 2018, when the new User Agreement goes into effect, for Users who registered before April 20, 2018.
- Updated User Agreement - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- Site Terms of Use
- Updated Site Terms of Use - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Upwork Widget Terms of Use
- Upwork Mark Use Guidelines - effective when posted on April 20, 2018 for all Users
- Optional Service Contract Terms - effective on May 20, 2018 for all Users who registered before April 20, 2018, and effective when posted for everyone else.
Effective April 20, 2018 to April 20, 2018
DownloadTable of Contents
- User Agreement - effective until May 20, 2018, when the new User Agreement goes into effect, for Users who registered before April 20, 2018.
- Updated User Agreement - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- Site Terms of Use
- Updated Site Terms of Use - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Upwork Widget Terms of Use
- Upwork Mark Use Guidelines - effective when posted on April 20, 2018 for all Users
- Optional Service Contract Terms - effective until May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
Effective April 20, 2018 to April 20, 2018
DownloadTable of Contents
- User Agreement - effective until May 20, 2018, when the new User Agreement goes into effect, for Users who registered before April 20, 2018.
- Updated User Agreement - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- Site Terms of Use
- Updated Site Terms of Use - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Upwork Widget Terms of Use
- Upwork Mark Use Guidelines - effective when posted on April 20, 2018 for all Users
- Optional Service Contract Terms - effective until May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
Effective April 20, 2018 to April 20, 2018
DownloadTable of Contents
- User Agreement - effective until May 20, 2018, when the new User Agreement goes into effect, for Users who registered before April 20, 2018.
- Updated User Agreement - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- Site Terms of Use
- Updated Site Terms of Use - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Upwork Widget Terms of Use
- Upwork Mark Use Guidelines - effective when posted on April 20, 2018 for all Users
- Optional Service Contract Terms - effective until May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
Effective April 20, 2018 to April 20, 2018
DownloadTable of Contents
- User Agreement - effective until May 20, 2018, when the new User Agreement goes into effect, for Users who registered before April 20, 2018.
- Updated User Agreement - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- Site Terms of Use
- Updated Site Terms of Use - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Upwork Widget Terms of Use
- Upwork Mark Use Guidelines - effective when posted on April 20, 2018 for all Users
- Optional Service Contract Terms - effective until May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
Effective April 20, 2018 to April 20, 2018
DownloadTable of Contents
- User Agreement - effective until May 20, 2018, when the new User Agreement goes into effect, for Users who registered before April 20, 2018.
- Updated User Agreement - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- Site Terms of Use
- Updated Site Terms of Use - effective on May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
- 'Upwork Team' Software License Agreement
- Upwork Payroll Agreement
- Upwork Widget Terms of Use
- Upwork Mark Use Guidelines
- Upwork Mark Use Guidelines - effective when posted on April 20, 2018 for all Users
- Optional Service Contract Terms - effective until May 20, 2018, for all Users who registered before April 20, 2018, and effective when posted for everyone else.
Effective March 23, 2018 to April 20, 2018
DownloadTable of Contents
- User Agreement
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Fixed-Price Escrow Instructions
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- 'Upwork Team' Software License Agreement
- Terms of Use
- Upwork Escrow Inc.
- Upwork Payroll Agreement
- Upwork Widget Terms of Use
Effective March 22, 2018 to March 23, 2018
DownloadTable of Contents
- User Agreement
- Privacy Policy
- API Terms of Use
- Cookie Policy
- Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions
- Escrow Instructions
- Fee and ACH Authorization Agreement
- Fixed-Price Escrow Instructions
- Freelancer Membership Policy
- Proprietary Rights Infringement Reporting Procedures
- 'Upwork Team' Software License Agreement
- Terms of Use
- Upwork Escrow Inc.
- Upwork Payroll Agreement
- Upwork Widget Terms of Use
User Agreement
Effective November 14, 2019
DownloadTable of Contents
TABLE OF CONTENTS
1. UPWORK ACCOUNTS
1.1 REGISTRATION AND ACCEPTANCE
1.2 ACCOUNT ELIGIBILITY
1.3 ACCOUNT PROFILE
1.4 ACCOUNT TYPES
1.4.1 CLIENT ACCOUNT
1.4.2 FREELANCER, AGENCY, AND AGENCY MEMBER ACCOUNT
1.5 ACCOUNT PERMISSIONS
1.6 IDENTITY AND LOCATION VERIFICATION
1.7 USERNAMES AND PASSWORDS
2. PURPOSE OF UPWORK
2.1 RELATIONSHIP WITH UPWORK
2.2 TAXES AND BENEFITS
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
3. CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND FREELANCER
3.1 SERVICE CONTRACTS
3.2 DISPUTES AMONG USERS
3.3 CONFIDENTIAL INFORMATION
3.4 THIRD-PARTY BENEFICIARIES
4. WORKER CLASSIFICATION AND UPWORK PAYROLL
4.1 WORKER CLASSIFICATION
4.2 UPWORK PAYROLL SERVICES
5. UPWORK FEES
5.1 SERVICE FEES FOR FREELANCERS
5.2 MEMBERSHIP FEES AND CONNECTS
5.3 DISBURSEMENT FEES
5.4 CLIENT FEES
5.5 VAT AND OTHER TAXES
5.6 NO FEE FOR INTRODUCING OR FOR FINDING PROJECTS
6. PAYMENT TERMS AND ESCROW SERVICES
6.1 ESCROW SERVICES
6.2 CLIENT PAYMENTS ON SERVICE CONTRACTS
6.3 DISBURSEMENTS TO FREELANCERS
6.4 NON-PAYMENT
6.5 NO RETURN OF FUNDS
6.6 PAYMENT METHODS
6.7 U.S. DOLLARS AND FOREIGN CURRENCY CONVERSION
7. NON-CIRCUMVENTION
7.1 MAKING PAYMENTS THROUGH UPWORK
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
7.2 OPTING OUT
8. RECORDS OF COMPLIANCE
9. WARRANTY DISCLAIMER
10. LIMITATION OF LIABILITY
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
11. RELEASE
12. INDEMNIFICATION
13. AGREEMENT TERM AND TERMINATION
13.1 TERMINATION
13.2 ACCOUNT DATA ON CLOSURE
13.3 SURVIVAL
14. DISPUTES BETWEEN YOU AND UPWORK
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
14.2 CHOICE OF LAW
14.3 INFORMAL DISPUTE RESOLUTION
14.4 BINDING ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER (DOES NOT APPLY TO USERS LOCATED OUTSIDE THE UNITED STATES AND ITS TERRITORIES)
14.4.1. SCOPE OF ARBITRATION AGREEMENT AND CONDUCT OF ARBITRATION
14.4.2. INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION PROVISION
14.4.3. CLASS AND COLLECTIVE WAIVER
14.4.4. RIGHT TO OPT OUT OF THE ARBITRATION PROVISION
15. GENERAL
15.1 ENTIRE AGREEMENT
15.2 MODIFICATIONS; WAIVER
15.3 ASSIGNABILITY
15.4 SEVERABILITY
15.5 FORCE MAJEURE
15.6 PREVAILING LANGUAGE AND LOCATION
15.8 CONSENT TO USE ELECTRONIC RECORDS
16. DEFINITIONS
Effective September 19, 2019 to November 14, 2019
DownloadTable of Contents
may, without notice, charge all or a portion of the amount that is owed to any Payment Method on file on the Client’s Account; set off amounts due against other amounts received from Client or held by for Client by Upwork, Upwork Escrow or another Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective June 5, 2019 to September 19, 2019
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective April 2, 2019 to June 5, 2019
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective April 2, 2019 to April 2, 2019
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective April 2, 2019 to April 2, 2019
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective April 2, 2019 to April 2, 2019
DownloadTable of Contents
.
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective February 25, 2019 to April 2, 2019
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective May 21, 2018 to February 25, 2019
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective May 21, 2018 to May 21, 2018
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective May 21, 2018 to May 21, 2018
DownloadSummary of changes
Table of Contents
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective May 20, 2018 to May 21, 2018
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contract, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contract, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- Refer a User you identified on the Site to a third-party who is not a User of the Site for purposes of making or receiving payments off the Site.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your Account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective April 20, 2018 to May 20, 2018
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Effective September 13, 2016 to April 20, 2018
DownloadTable of Contents
- Submit proposals or solicit parties identified through the Site to contact, hire, work with, or pay outside the Site.
- Accept proposals or solicit parties identified through the Site to contact, deliver services, invoice, or receive payment outside the Site.
- Invoice or report on the Site or in an Opt-Out Fee request an invoice or payment amount lower than that actually agreed between Users.
- your use of or your inability to use our Site or Site Services;
- delays or disruptions in our Site or Site Services;
- viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services;
- damage to your hardware device from the use of the Site or Site Services;
- the content, actions, or inactions of third parties’ use of the Site or Site Services;
- a suspension or other action taken with respect to your account;
- your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), or metrics found on, used on, or made available through the Site; and
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Privacy Policy
Effective September 30, 2019
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service. For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at Users' request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to view a job post or submit a proposal for work as a Freelancer via the Service, we may share relevant information with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective July 18, 2019 to September 30, 2019
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service. For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at Users' request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective July 18, 2019 to July 18, 2019
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service. For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at Users' request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective June 24, 2019 to July 18, 2019
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service.
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective April 20, 2019 to June 24, 2019
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service.
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective April 20, 2019 to April 20, 2019
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legalnotices@upwork.com .
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service.
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal#cookie-policy.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, Upwork Payroll Vendors, and Partners of The Upwork Foundation Initiative: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile. If you choose to participate in The Upwork Foundation Initiative as a Freelancer, we may share information relevant to your participation in the program with partners of Upwork who provide support to Freelancers through that program.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective April 20, 2019 to April 20, 2019
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service.
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective March 6, 2019 to April 20, 2019
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service.
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective July 26, 2018 to March 6, 2019
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service.
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective June 21, 2018 to July 26, 2018
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service.
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective May 25, 2018 to June 21, 2018
DownloadTable of Contents
- Information about Freelancers Shared with Clients and Agencies or Teams
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request that We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests, and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Rights
- Security
- International Transfers of Personal Information
- Privacy Shield Notice
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- In some cases, we may render Personal Information (generally, email address) into a form of Non-Identifying Information referred to in this Privacy Policy as “Hashed Information.” This is typically accomplished using a mathematical process (commonly known as a hash function) to convert information into a code. The code does not identify you directly, but it may be used to connect your activity and interests.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First name, last name, and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You can control the use of cookies at the individual browser level, but if you choose to disable cookies, it may limit your use of certain features or functionality of the Service.
- For further information on cookies and how they are used for the Service, please visit our Cookie Policy at /legal/cookie-policy/.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid, and for compliance and internal business purposes.
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Rights section, below.
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online.
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent.
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports.
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users.
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- To Honor Our Contractual Commitments to You. Much of our processing of Personal Information is to meet our contractual obligations to our investors, or to take steps at User’s request in anticipation of entering into a contract with them.
- For Our Legitimate Interests. In many cases, we handle Personal Information on the grounds that it furthers our legitimate interests in commercial activities, such as the following, in ways that are not overridden by the interests or fundamental rights and freedoms of the affected individuals:
- Providing our Site and Service.
- Analyzing and improving our business.
- Communications, including marketing and responding to your inquiries about our services.
- Addressing information security needs and protecting our Users, Upwork, and others.
- Managing legal issues.
- To Comply with Legal Obligations. We need to use and disclose Personal Information in certain ways to comply with our legal obligations.
- Information about Freelancers Shared with Clients, Agencies, and Upwork Payroll Vendors: We share information regarding Freelancers who have entered into a contract with a Client or who have elected to participate in Upwork Payroll, including information in Work Diaries and work history, with Clients, Agencies and Upwork Payroll vendors. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or submitted proposals for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to submit a proposal for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract or agreed to use Upwork Payroll with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information from Third Parties or Request that We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law in response to lawful requests by public authorities, including to meet national security or law enforcement requirements and, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), or, at the request of governmental authorities or other third parties conducting an investigation where we determine in our sole discretion the disclosure is necessary to (a) protect the property and rights of Upwork or a third party, (b) protect the safety of the public or any person, or (c) prevent or stop activity we may consider to be, or pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., and any current or future subsidiaries or affiliates, primarily for business and operational purposes. We may sell, transfer, or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy.
- Sweepstakes, Contests, and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness, or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Effective April 18, 2018 to May 25, 2018
DownloadTable of Contents
- Information Collection
- Information You Provide to Us
- Information Received from Third Parties
- Information Collected from Users Automatically
- How We Respond to Do Not Track Signals
- Work Diaries and Work View
- User Profiles
- Community Forums
- Testimonials
- Work Listings Through the Service
- Feedback
- Email to Friends and Referral Program
- Social Networking Services
- Use and Retention of Information
- Information Sharing and Disclosure
- Information about Freelancers Shared with Clients and Agencies or Teams
- Information about Clients and Agencies Shared with Freelancers
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request That We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Opting Out
- Changing Your Information or Closing Your Account
- Security
- International Transfers of Personal Information
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You may be able to instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. If you do not accept cookies, however, you may not be able to use all functionality of the Service.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid and for compliance and internal business purposes;
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Opting Out section, below;
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online;
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent;
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports;
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users; and
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- Information about Freelancers Shared with Clients and Agencies: We share information regarding Freelancers working on a Client project, including information in Work Diaries and work history, with Clients. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or applied for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to apply for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information From Third Parties or Request That We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), at the request of governmental authorities or other third parties conducting an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., subsidiaries, and affiliates, primarily for business and operational purposes. We may sell, transfer or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy. You will be notified via email and/or a prominent notice on our website of any change in ownership or uses of your personal information, as well as any choices you may have regarding your personal information.
- Sweepstakes, Contests and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Attn: Legal
441 Logue Ave.
Mountain View, CA 94043
Effective March 2, 2018 to April 18, 2018
DownloadTable of Contents
- Information Collection
- Information You Provide to Us
- Information Received from Third Parties
- Information Collected from Users Automatically
- How We Respond to Do Not Track Signals
- Work Diaries and Work View
- User Profiles
- Community Forums
- Testimonials
- Work Listings Through the Service
- Feedback
- Email to Friends and Referral Program
- Social Networking Services
- Use and Retention of Information
- Information Sharing and Disclosure
- Information about Freelancers Shared with Clients and Agencies or Teams
- Information about Clients and Agencies Shared with Freelancers
- Service Providers
- What Happens if You Agree to Receive Information from Third Parties or Request That We Share Your Information
- Legal and Investigative Purposes
- Internal and Business Transfers
- Sweepstakes, Contests and Promotions
- Third Party Analytics Providers, Ad Servers and Similar Third Parties
- Your Choices and Opting Out
- Changing Your Information or Closing Your Account
- Security
- International Transfers of Personal Information
- Links to Other Sites
- Public Profile
- Phishing
- California Residents – Your California Privacy Rights
- Changes to this Policy
- Contacting Us
- Personal Information: In the course of using the Service (whether as a Client or Freelancer), we may require or otherwise collect information that identifies you as a specific individual and can be used to contact or identify you (“Personal Information”). Examples of Personal Information include your name, email address, company address, billing address, and phone number.
- Payment Information: If you use the Service to make or receive payments, we will also collect certain payment information, such as credit card, PayPal or other financial account information, and billing address.
- Identity Verification: We may collect Personal Information, such as your date of birth or taxpayer identification number, to validate your identity or as may be required by law, such as to complete tax filings. We may request documents to verify this information, such as a copy of your government-issued identification or photo or a billing statement.
- General Audience Service: The Service is general audience and intended for users 18 and older. We do not knowingly collect Personal Information from anyone younger than age 18. If we become aware that a child younger than 18 has provided us with Personal Information, we will use commercially reasonable efforts to delete such information from our files. If you are the parent or legal guardian of a child younger than age 18 and believe that Upwork has collected Personal Information from your child, please contact us at: legal@upwork.com.
- Non-Identifying Information/Usernames: We also may collect other information, such as zip codes, demographic data, information regarding your use of the Service, and general project-related data (“Non-Identifying Information”). We may aggregate information collected from Upwork registered and non-registered users (“Upwork Users”). We consider usernames to be Non-Identifying Information. Usernames are made public through the Service and are viewable by other Upwork Users.
- Combination of Personal and Non-Identifying Information: Certain Non-Identifying Information would be considered a part of your Personal Information if it were combined with other identifiers in a way that enables you to be identified (for example, combining information with your name). But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other non-identifying information (for example, your viewing preferences). We may combine your Personal Information with Non-Identifying Information, but Upwork will treat the combined information as Personal Information.
- Collection of the Third Party Personal Information: We collect the following personal information from you about your contacts or friends: First, last name and email address when you provide it to us for the purpose of adding your contacts to a message room.
- Cookies: Like many websites, we and our marketing partners, affiliates, analytics, and service providers use “cookies” to collect information. A cookie is a small data file that we transfer to your computer’s hard disk for record-keeping purposes. We use both persistent cookies that remain on your computer or similar device (such as to save your registration ID and login password for future logins to the Service and to track your compliance with the Upwork Terms of Service) and session ID cookies, which expire at the end of your browser session (for example, to enable certain features of the Service, to better understand how Upwork Users interact with the Service and to monitor aggregate usage by Upwork Users and web traffic routing on the Service). You may be able to instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. If you do not accept cookies, however, you may not be able to use all functionality of the Service.
- Web Beacons: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as “web beacons” and/or “tracking tags” to help us keep track of what content on our Service is effective and to serve relevant advertising to you. Web beacons are small graphics with a unique identifier that may be invisible to you, and which are used to track the online activity of Internet users. Web beacons are embedded in the web pages you review or email messages you receive. Web beacons or similar technologies may be used for a number of purposes, including, without limitation, to count visitors to our Service, to monitor how Upwork Users navigate the Service, to count how many emails that were sent were actually opened, or to count how many particular articles or links were actually viewed.
- Embedded Scripts: We and our marketing partners, affiliates, analytics, and service providers may also employ software technology known as an Embedded Script. An Embedded Script is programming code that is designed to collect information about your interactions with the Service, such as the links you click on. The code is temporarily downloaded onto your computer or other device and is deactivated or deleted when you disconnect from the Service.
- To provide and improve the Service, complete your transactions, and address your inquiries, process your registration, verify the information you provide is valid and for compliance and internal business purposes;
- To contact you with administrative communications and Upwork newsletters, marketing or promotional materials (on behalf of Upwork or third parties) and other information that may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the instructions in the Your Choices and Opting Out section, below;
- To tailor content we display to you and offers we may present to you, both on the Service and elsewhere online;
- To administer and develop our business relationship with you and, if applicable, the corporation or other legal entity you represent;
- To assess your proposal to perform a freelance project for Upwork and prepare related governmental and internal statistics reports;
- To enforce and comply with the law, including to conduct an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users; and
- For the purposes disclosed at the time you provide your information, with your consent, and as further described in this Privacy Policy.
- Information about Freelancers Shared with Clients and Agencies: We share information regarding Freelancers working on a Client project, including information in Work Diaries and work history, with Clients. Note that if a Freelancer is suspended from the Upwork Service, we may share that information with Clients for whom that Freelancer has worked or applied for work. We may also share information with Agencies to whom Freelancers are associated for a particular work project. If you choose to apply for work as a Freelancer via the Service, we will share information relevant to your application with the applicable Client(s), including, but not limited to, the information contained in your Freelancer Profile.
- Information about Clients and Agencies Shared with Freelancers: If you have entered into a service contract with another user, we may provide him/her with your name, company address, billing address, or tax ID or VAT number in order to complete the transaction or to facilitate the resolution of a claim or dispute. The user receiving your information is not allowed to use it for purposes unrelated to the transaction, such as to contact you for marketing purposes, unless you have expressly consented to it.
- Service Providers: We may employ third party companies and individuals to facilitate our Service, to provide the Service on our behalf, to perform Service-related services (e.g., without limitation, maintenance services, database management, web analytics and online advertising, payment processing, fraud detection and improvement of Upwork’s features) or to assist us in analyzing how our Service is used. These third parties may have access to your Personal Information in order to perform these tasks on our behalf.
- What Happens If You Agree to Receive Information From Third Parties or Request That We Share Your Information: You may be presented with an opportunity to receive information and/or marketing offers from one or more third parties. If you agree at that time to have your Personal Information shared, your Personal Information will be disclosed to that third party (or parties) and will be subject to the privacy policy and practices of that third party. We are not responsible for the privacy policies and practices of third parties, and, if you later decide that you no longer want to receive communications from a third party, you will need to contact that third party directly. You also may request, sometimes through your use of an SNS or similar interactive feature or third party application, that we share information about you with a third party and we will typically do so under those circumstances.
- Legal and Investigative Purposes: Upwork will share information with government agencies as required by law, including without limitation, in connection with reporting earnings. We cooperate with government and law enforcement officials and private parties to enforce and comply with the law. We will disclose information about you to government or law enforcement officials or private parties as we, in our sole discretion, believe necessary or appropriate to respond to claims and legal process (including but not limited to subpoenas), at the request of governmental authorities or other third parties conducting an investigation, to protect the property and rights of Upwork or a third party, to protect the safety of the public or any person, or to prevent or stop activity we may consider to be, or to pose a risk of being, illegal, fraudulent, unethical or legally actionable activity. We may also use Device Identifiers to identify Upwork Users, and may do so in cooperation with third parties at our discretion.
- Internal and Business Transfers: Upwork may share information, including Personal Information, with its parent company Upwork Inc., subsidiaries, and affiliates, primarily for business and operational purposes. We may sell, transfer or otherwise share some or all of our assets, including your Personal Information, in connection with a merger, acquisition, reorganization or sale of assets (including, in each case, as part of the due-diligence process with any potential acquiring entity) or in the event of bankruptcy. You will be notified via email and/or a prominent notice on our website of any change in ownership or uses of your personal information, as well as any choices you may have regarding your personal information.
- Sweepstakes, Contests and Promotions: We may offer sweepstakes, contests, and other promotions (any, a “Promotion”) that may require registration. By participating in a Promotion, you are agreeing to the official rules that govern that Promotion, which may contain specific requirements of you, including, except where prohibited by law, allowing the sponsor(s) of the Promotion to use your name, voice, likeness or other indicia of persona in advertising or marketing associated with the Promotion. If you choose to enter a Promotion, your Personal Information may be disclosed to third parties or the public in connection with the administration of such Promotion, including, without limitation, in connection with winner selection, prize fulfillment, and as required by law or permitted by the Promotion’s official rules, such as on a winner’s list.
Attn: Legal
441 Logue Ave.
Mountain View, CA 94043
Privacy Center
Effective December 19, 2019
DownloadTable of Contents
- Upwork Privacy Policy
- Upwork Cookie Policy
- Data Protection Self-Assessment (UK Information Commissioner’s Office)
- GDPR FAQs for Small Organizations (UK Information Commissioner’s Office)
- What you Need to Know About the New Data Protection Rules (Upwork Hiring Headquarters)
Effective August 2, 2019 to December 19, 2019
DownloadTable of Contents
- Upwork Privacy Policy
- Upwork Cookie Policy
- Data Protection Self-Assessment (UK Information Commissioner’s Office)
- GDPR FAQs for Small Organizations (UK Information Commissioner’s Office)
- What you Need to Know About the New Data Protection Rules (Upwork Hiring Headquarters)
Effective August 2, 2019 to August 2, 2019
DownloadTable of Contents
- Upwork Privacy Policy
- Upwork Cookie Policy
- Data Protection Self-Assessment (UK Information Commissioner’s Office)
- GDPR FAQs for Small Organizations (UK Information Commissioner’s Office)
- What you Need to Know About the New Data Protection Rules (Upwork Hiring Headquarters)
Effective August 2, 2019 to August 2, 2019
DownloadTable of Contents
- Upwork Privacy Policy
- Upwork Cookie Policy
- Data Protection Self-Assessment (UK Information Commissioner’s Office)
- GDPR FAQs for Small Organizations (UK Information Commissioner’s Office)
- What you Need to Know About the New Data Protection Rules (Upwork Hiring Headquarters)
Effective June 5, 2018 to August 2, 2019
DownloadTable of Contents
- Download this form and complete it.
- Email the completed form to gdpr-dsar@upwork.com.
- After we receive your email with the completed form, one of our Support Team members will reach out to you with instructions on how to verify your identity, which must be completed in order to process your request
- Upwork Privacy Policy
- Upwork Cookie Policy
- Data Protection Self-Assessment (UK Information Commissioner’s Office)
- GDPR FAQs for Small Organizations (UK Information Commissioner’s Office)
- What you Need to Know About the New Data Protection Rules (Upwork Hiring Headquarters)
Effective May 25, 2018 to June 5, 2018
DownloadTable of Contents
- Download this form and complete it.
- Email the completed form to gdpr-dsar@upwork.com.
- After we receive your email with the completed form, one of our Support Team members will reach out to you with instructions on how to verify your identity, which must be completed in order to process your request
- Upwork Privacy Policy
- Upwork Cookie Policy
- Data Protection Self-Assessment (UK Information Commissioner’s Office)
- GDPR FAQs for Small Organizations (UK Information Commissioner’s Office)
- What you Need to Know About the New Data Protection Rules (Upwork Hiring Headquarters)
API Terms of Use
Effective December 14, 2016
DownloadTable of Contents
- Upwork API. A set of web-based services providing programmatic access to Upwork systems and data, together with all updates, revisions, and copies thereof. This also includes any associated tools and documentation that Upwork makes available under the API Terms.
- Upwork Content. Any data, content, or executables of or associated with the Upwork API or Site Services (as defined in the Upwork Terms of Service). This includes all Upwork User Data.
- Upwork User Data. Any content, information, and other data about persons who use the Upwork services received or collected by Developer through any instance of the Developer Application, the Upwork API, or otherwise in connection with the API Terms.
- Developer Registration. Before using the Upwork API, Developer must provide accurate information identifying its organization and the individual representative who will serve as a point of contact for Upwork. The registration may be completed and accepted by Upwork on the Site. Upon successful registration, Upwork shall make Access Credentials available to Developer. “Access Credentials” means the necessary security keys, secrets, tokens, and other credentials to access the Upwork API. All activities that occur using your Access Credentials are your responsibility. Access Credentials are specific to you and are confidential information. Keep them secret. You must not sell, transfer, or sublicense the Access Credentials. Do not try to circumvent them and do not require your users, employees, contractors, or agents to obtain their own Access Credentials to build, maintain, or use the Developer Application. Developer itself must request any Access Credentials to be used by any employee, contractor, or agent of Developer.
- Development of the Developer Application. Subject to the terms of these Terms of Use, Developer will develop one or more Developer Applications. Developer will ensure that all Developer Applications are and remain in compliance with the API Terms and the Upwork Terms of Service.
- Permitted Uses of the Upwork API. Your use of the Upwork API is limited to the purpose of facilitating your own or your Users’ use of the Upwork Site and Site Services. Some examples of permitted uses of the Upwork API would be to create Applications that:
- Allow Upwork Users to search for and browse Upwork job postings with a customized interface;
- Allow Upwork Users to manage active contracts;
- Allow Upwork Users to apply to jobs on Upwork; or
- Allow Upwork Users to manage invoices, billing, and communications on Upwork.
- Prohibited Uses of the Upwork API. Developer must never do any of the following:
- Use the Upwork API in any Developer Application that includes adult content, promotes gambling, involves the sale of tobacco or alcohol to persons under 21 years of age, promotes or offers malicious code, or violates any applicable law or regulation.
- Use the Upwork API to retrieve Upwork Content that is then aggregated with third-party search results in such a way that a user cannot attribute the Upwork Content to Upwork (such as aggregated search results).
- Distribute or allow access to the Upwork API to anyone other than the entity on whose behalf Developer agreed to these Terms, or create an application programming interface that enables access to Upwork Content
- Prohibited Uses/Functions of Developer Application. Developer and the Developer Application must not do the following:
- Implement features or business practices that unlawfully harm the professional reputation or relationships of Upwork or Upwork users.
- Use Upwork Content received from the Upwork API in any manner that facilitates bias, discrimination, or data “redlining,” whether intentional or inadvertent, based on sensitive or protected categories or characteristics.
- Impersonate Upwork or an Upwork user or intentionally misrepresent Upwork or any Upwork user or other third party when requesting or publishing information.
- Obfuscate or hide any Upwork buttons, sign-in functionality, or consent or authorization flows from your users.
- Proxy, request, or use Upwork account user names or passwords in any fashion for any reason.
- Request from the Upwork API more than the minimum data fields and application permissions the Developer Application needs.
- Try to exceed or circumvent limitations on calls and use. This includes creating multiple Developer Applications for identical, or largely similar, purposes.
- Download, scrape, post, or transmit, in any form or by any means, any part of the Site or Site Services, including data retrieved by web browser plugins.
- Copy, reformat, reverse-engineer, or otherwise modify the Upwork API, Access Credentials, the Site, the Site Services, or any Upwork Content.
- Promote or operate any product or service that competes with the Upwork Site Services.
- Interfere with or disrupt Upwork services, Upwork servers or networks connected to Upwork services, or disobey any requirements, procedures, policies or regulations of networks connected to the Upwork Site or Site Services.
- Engage in any conduct that fails to comply with, or is otherwise inconsistent with, any agreement between Developer and Upwork or any written instructions provided by Upwork.
- Permitted Uses of the Upwork API. Your use of the Upwork API is limited to the purpose of facilitating your own or your Users’ use of the Upwork Site and Site Services. Some examples of permitted uses of the Upwork API would be to create Applications that:
- Using the Upwork API. As part of the API Terms, Upwork grants you a non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted herein) license to use the Upwork API solely to do the following and subject to the restrictions set forth in the API Terms:
- Enable your Application to interact with Upwork’s databases to retrieve information necessary to facilitate your own or Your Users’ use of the Site and Site Services through your Application;
- Make limited intermediate copies of Upwork Content only as necessary to perform activity permitted under the API Terms. You must delete all intermediate copies when they are no longer required for the purpose for which they were created;
- Rearrange or reorganize Upwork Content within your Application; and
- Display in your Application Upwork Content consistent with this Agreement.
- Access Credentials. Upwork will provide you with Access Credentials that permit you to access the Upwork API. The Access Credentials are the property of Upwork and may be revoked if you share them with any third party (other than as allowed in the API Terms), if they are compromised, if you violate the API Terms or the Upwork Terms of Service, or if Upwork terminates the API Terms.
- API Call Limitations. The number of API calls you will permitted to make during any given time period may be limited. Upwork will determine call limits based on various factors, including the ways your Application may be used or the anticipated volume of use associated with your Application. Upwork may, in its sole discretion, charge you for API calls that exceed the call limits or terminate your access to the Upwork API in accordance with Section 17 (Suspension and Termination). Unused calls will not roll over to the next day or month, as applicable.
- Obligations to Upwork. Developer may only use, disclose, and otherwise process Upwork User Data in accordance with the written instructions of Upwork and applicable laws, rules and regulations.
- Prohibited Uses. Developer will not:
- Use Upwork Content for any purpose except to the extent necessary for (1) the purpose of processing and supporting a specific transaction for the applicable Upwork user or (2) the purpose of providing services to Upwork.
- Use Upwork Content for any research or publication purpose without prior written consent and a license from Upwork to research or publish, as applicable, Upwork Content.
- Use Upwork Content for any other purpose (e.g., for Developer’s own benefit or for the benefit of any other entity or person).
- Use Upwork Content for user profiling purposes or for advertising purposes.
- Sell, lease, sublicense, or otherwise transfer, directly or indirectly, Upwork Content to any third party.
- Augment, commingle, or supplement Upwork Content with personally identifiable or confidential information (including any mobile device identifier or other unique identifier that identifies any particular user, browser, computer or device) from any third-party source.
- Use the user identification or authentication codes connected to any Upwork user to disclose information related to that user to any third party.
- Authentication Tokens. Developer may store any Developer Application-specific alphanumeric user identification codes that Upwork provides to Developer for identifying individual users of the Developer Application or any tokens that Upwork provides to Developer when an Upwork user authenticates the Developer Application for the Upwork user’s account.
- Cached Content. Solely for the purpose of improving user experience, Developer may cache Upwork Content for no more than twenty-four (24) hours.
- Deletion. Developer must promptly and securely delete all Upwork User Data collected from Upwork users upon request of the Upwork user, when the Upwork user deactivates or uninstalls the Developer Application, when the Upwork user closes their account with Developer, and before, when possible, or promptly upon termination of the API Terms. Developer will promptly and securely delete all Upwork Content after completion of all activities reasonably necessary to operate or maintain the Developer Application and upon termination of the API Terms.
- User Agreement and Privacy Policy. The Developer Application must include your own user agreement and privacy policy. Your user agreement and privacy policy must be prominently identified or located where members download or access the Development Application. Your privacy policy must meet applicable legal standards and accurately describe the collection, use, storage and sharing of data. You must promptly notify us of any breaches of your user agreement or privacy policy that impact or may impact Upwork users.
- User Consent. Before obtaining information from Upwork users, you must obtain their informed consent by telling them what information you collect and how it will be used, stored or shared, and by taking any additional steps required by law or regulation.
- Upwork Materials. Upwork owns all rights, title, and interest, including all intellectual property rights, in and to, the Upwork API; all elements, components, and executables of the Upwork API; and all elements, components, and executables of the Site Services (collectively, the “Upwork Materials”). The only exception to this is any information or Content which you as an Upwork user have licensed to Upwork under the Upwork Terms of Service. Except for the express licenses granted in the API Terms, Upwork does not grant you any right, title, or interest in the Upwork Materials. Developer agrees to take such actions as Upwork may reasonably request to perfect Upwork’s rights to the Upwork Materials.
- Developer Property. Except to the extent the Developer Application contains Upwork Materials, Upwork claims no ownership or control over your Developer Application. During the term of the API Terms you hereby grant Upwork a paid-up, royalty-free, non-exclusive, worldwide, irrevocable right and license, under all of your intellectual property rights, to: (1) use, perform, and display the Developer Application and its content for purposes of marketing, demonstrating, and making the Developer Application available to Upwork users; (2) link to and direct Upwork users to the Developer Application; and (3) sublicense the foregoing rights to our affiliates.
- Feedback. Developer may, but is not required to, provide suggestions, comments, ideas, or know‐how, in any form, to Upwork related to Upwork products, services or technology (“Feedback”). To the extent Developer provides Feedback to Upwork, Developer grants Upwork the right to use such Feedback without any right to compensation from Upwork.
- Term. The term of the API Terms will commence on the date upon which you agree to the API Terms and will continue until terminated as set forth below.
- Developer’s Termination Rights. Developer may terminate the API Terms by discontinuing use of the Upwork API and returning all Upwork Content, including Upwork User Data.
- Suspension and Termination. Upwork may suspend or terminate Developer’s use of the Upwork API at any time if we believe you have violated the API Terms or Upwork Terms of Service, or if we believe the availability of the Upwork API in the Developer Application is not in our or our users’ best interests. Immediately upon termination of the API Terms, all licenses granted to Developer will cease and all data retrieved from the Upwork API or Site Services must be deleted.
- Effect of Termination. Upon termination of these Terms:
- all rights and licenses granted to Developer will terminate immediately;
- Developer will promptly and securely destroy Upwork Content in your possession or control;
- neither party is liable to the other party solely because the API Terms have been terminated;
- unless we agree otherwise in writing or as stated explicitly in the API Terms, Developer must permanently delete all Upwork Content and Upwork User Data or other data which you stored pursuant to your use of the Upwork API. Upwork may require that you certify in writing your compliance with this section; and
- Upwork will make commercially reasonable efforts to remove all references and links to the Developer Application from the Site (Upwork has no other obligation to delete copies of, references to, or links to the Developer Application).
- Disclaimer of Warranties. UPWORK PROVIDES THE UPWORK API, UPWORK CONTENT, AND ALL OTHER INFORMATION AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UPWORK DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. UPWORK DOES NOT GUARANTEE THAT THE UPWORK API WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF THE UPWORK API MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. UPWORK DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, UPWORK DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE UPWORK API DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
- Limitations of Liability. UPWORK AND OUR EMPLOYEES, AGENTS, SHAREHOLDERS, OR DIRECTORS, SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, PROFIT, REVENUE OR DATA TO YOU OR ANY THIRD PERSON ARISING FROM YOUR USE OF THE UPWORK API. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER (i) YOU BASE YOUR CLAIM ON CONTRACT, TORT, STATUTE, OR ANY OTHER LEGAL THEORY, (ii) WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES, OR (iii) THE LIMITED REMEDIES PROVIDED IN THIS SECTION FAIL OF THEIR ESSENTIAL PURPOSE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY DAMAGE THAT UPWORK MAY CAUSE YOU INTENTIONALLY OR KNOWINGLY IN VIOLATION OF THE API TERMS OR APPLICABLE LAW.
- Indemnification. You will defend, hold harmless, and indemnify Upwork (and our and their respective employees, agents, shareholders, and directors) from any claim or action brought by a third party, including all damages, liabilities, costs and expenses, including reasonable attorneys’ fees, to the extent resulting from, alleged to have resulted from, or in connection with: (i) your breach of your obligations herein; or (ii) the violation of any copyright, trademark, service mark, trade secret or United States patent by the Developer Application.
- Relationship of the Parties. The parties are agreeing to the API Terms as independent contractors, and the API Terms will not be construed to create a partnership, joint venture or employment relationship between them. Neither party is authorized to or will represent itself to be an employee or agent of the other or enter into any agreement on the other’s behalf of or in the other’s name.
- Assignability. You may not assign the API Terms, nor any of your rights or obligations hereunder, without Upwork’s prior written consent. Upwork may freely assign the API Terms without your consent. Any attempted assignment or transfer in violation of this section will be null and void. Subject to the foregoing restrictions, the API Terms will inure to the benefit of successors and permitted assigns of the parties.
- Severability. If and to the extent any provision of the API Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or enforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
- Choice of Law and Venue. The API Terms and any controversy, dispute or claim arising out of or relating to the API Terms shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). With respect to any User located outside the United States, the User agrees that the California state courts of Santa Clara County (or, if there is federal jurisdiction, the United States District Court for the Northern District of California) will have jurisdiction and venue with respect to any claim arising out of or relating to the API Terms and consents to the personal jurisdiction and venue of those courts.
- No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
- Miscellaneous. The API Terms set forth the entire agreement and understanding of the parties relating to their subject matter and cancel and supersede any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them. No modification or amendment to the API Terms shall be binding upon Upwork unless in a written instrument signed by a duly authorized representative of Upwork.
Effective May 5, 2015 to March 22, 2018
DownloadTable of Contents
- The “Upwork API” is a set of web-based services providing programmatic access to Upwork systems and data, together with all updates, revisions, and copies.
- The “Content” is data or content from the Site, made accessible by Upwork in its sole discretion.
- The “Application” is the software application, website or other client that you develop, own or operate that interfaces with the Upwork API in order to retrieve or interact with the Content.
- An “End User” is a person who uses the Application in connection with the End User’s Upwork account.
- “End User Data” is data entered into the Upwork Platform by an End User.
- Provide accurate identification, contact, and other information required to obtain a set of authentication keys from Upwork.
- Create only a single set of authentication keys per Application. These authentication keys must accompany all web services requests coming from that Application.
- Ensure that the fundamental meaning of the Content is not changed or distorted.
- Ensure that the use of the Upwork API or the display of the Content does not suggest that Upwork promotes or endorses you or any third party or the causes, ideas, websites, products or services of you or any third party.
- Ensure that any URLs that are presented by your Application:
- are represented, unaltered, as hyperlinks,
- direct the user, when clicked, to the source website. and
- never block a search engine from following the rendered hyperlink (for example, by including a rel=”nofollow”, or through any other means)
- Create any script or other automated tool that attempts to create multiple API authentication keys in order to bypass the limitations set by Upwork.
- Attempt to cloak, conceal or misrepresent your identity or your Application’s identity when requesting authorization to use the Upwork API.
- Use the Upwork API for any Application that constitutes, promotes or is used in connection with spyware, adware, other malicious programs or code, any hacking, surveillance, interception, or descrambling equipment, pornography, or professional services regulated or prohibited by government licensing regimes.
- Display the name, logo, trademark or other identifier of a person in such a manner as to give the viewer the impression that such other person is a publisher or distributor of the Application or Content if such person is not.
- Display content that falsely expresses or implies that such content is sponsored or endorsed by Upwork;
- Implement features or business practices that harm the professional reputation, relationships, or professional ecosystem of Upwork or its End Users.
- Use the Upwork API in an Application that competes with products or services offered by Upwork.
- Interfere with or disrupt Upwork services or servers or networks connected to Upwork services, or disobey any requirements, procedures, policies or regulations of networks connected to Upwork service.
- Archive any of the Content for access by End Users after your access to the Upwork API is terminated.
- Use the Upwork API in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with the Upwork Policies or the Upwork User Agreement.
- Sell, lease, share, transfer, or sublicense the Upwork API or access or access codes thereto.
- Use the Upwork API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the Upwork API documentation located within http://developers.upwork.com as determined by Upwork in its sole discretion.
- You should only request the End User Data you need to operate your Application.
- These API Terms of Use do not grant you any rights to End User Data or other Content.
- You should display a clear policy explaining to End Users what End User Data your Application accesses and how it is used.
- You must not sell End User Data or use it in any malicious way, and you are solely responsible for protecting End User Data from unauthorized access.
- Upon termination of your license under these Upwork Terms of Use, you must destroy all copies of End User Data, unless you have obtained valid and sufficient authorization from Upwork and the End User to retain it.
- You must delete all End User Data, if the associated End User so requests.
- You violate the API Terms of Use,
- Upwork publicly posts a written notice of termination on the Upwork Developer Network, currently located at http://developers.upwork.com,
- Upwork sends a written notice of termination to you, or
- Upwork ceases providing access to the Upwork API to you.
- Relationship of the Parties. The parties are agreeing to these API Terms of Use as independent contractors, and these API Terms of Use will not be construed to create a partnership, joint venture or employment relationship between them. Neither party will represent itself to be an employee or agent of the other or enter into any agreement on the other’s behalf of or in the other’s name.
- Assignability. You may not assign these API Terms of Use, nor any of your rights or obligations hereunder, without Upwork’s prior written consent. Upwork may freely assign these API Terms of Use without your consent. Any attempted assignment or transfer in violation of this section will be null and void. Subject to the foregoing restrictions, these API Terms of Use will inure to the benefit of successors and permitted assigns of the parties.
- Severability. If and to the extent any provision of these API Terms of Use is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or enforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
- Choice of Law; Venue. These API Terms of Use and any controversy, dispute or claim arising out of or relating to these API Terms of Use shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). With respect to any User located outside the United States, the User agrees that the California state courts of Santa Clara County (or, if there is federal jurisdiction, the United States District Court for the Northern District of California) will have jurisdiction and venue with respect to any claim arising out of or relating to this API Terms of Use Agreement and consents to the personal jurisdiction and venue of those courts.
- No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
- Miscellaneous. These API Terms of Use set forth the entire agreement and understanding of the parties relating to their subject matter and cancel and supersede any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them. No modification or amendment to these API Terms of Use shall be binding upon Upwork unless in a written instrument signed by a duly authorized representative of Upwork.
Cookie Policy
Effective June 24, 2019
DownloadTable of Contents
Effective May 5, 2015 to June 24, 2019
DownloadTable of Contents
Hourly, Bonus, and Expense Payment Agreement with Escrow Instructions
Effective April 20, 2018
DownloadTable of Contents
- Client and Freelancer have submitted joint written instructions for a Release.
- Client has approved all or a portion of the Freelancer's Hourly Invoice. This Release Condition will only apply to amounts invoiced by the Freelancer that Client has approved. Client’s failure to dispute an Hourly Invoice, or a portion of an Hourly Invoice, within the Dispute Period pursuant to this Agreement, or as otherwise provided in the Escrow Instructions, constitutes approval by the Client for purposes of this Release Condition.
- Freelancer is a Payroll Employee and has submitted an Hourly Invoice under a Services Contract that involves the use of Upwork Payroll.
- Upwork reviews Client's dispute of amounts invoiced on Freelancer's Hourly Invoice for an Hourly Contract with Work Diaries pursuant to this Agreement and determines that the time is related to the Hourly Contract requirements or Client's instructions.
- Client initiates a Dispute with respect to Freelancer's Hourly Invoice for an Hourly Contract without Work Diaries pursuant to this Agreement and Client and Freelancer resolve the dispute without the assistance of Upwork.
- Issuance of a final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
- We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer hereby irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
- Both Client and Freelancer must have agreed to use Work Diaries upon acceptance of the Hourly Contract, as part of the terms.
- Client must have an Account in good standing and a valid and verified Payment Method at the start of the Hourly Contract, and must agree to automatically pay for hours billed by Freelancer through Work Diaries.
- Freelancer's Account must be in good standing.
- Freelancer must have used Work Diaries enabled to document any and all hours covered by the Hourly Payment Protection for Freelancers.
- Prior to any Hourly Invoice being submitted, Freelancer must have annotated the screenshots documented in Work Diaries sufficient to demonstrate the work relates to the Hourly Contract.
- The screenshots documented by Work Diaries must be clearly related to the applicable Hourly Contract requirements or Client instructions.
- The number of hours billed in the Work Diaries must be within the hours authorized in the Hourly Contract for the week.
- Within five days after notification of rejected or unpaid time, Freelancer must submit a Dispute specifically identifying the documented work not otherwise paid for by their Client through the Escrow Services.
- Both Client and Freelancer must agree to use Work Diaries as part of the Hourly Contract terms.
- Client must have an Account in good standing and a valid and verified default Payment Method, and Client must agree to automatically pay for hours billed by Freelancer in the Hourly Invoices. Within the Hourly Invoice Review Period, Client must submit a Dispute specifically identifying the time billed that is not clearly related to either the Hourly Contract requirements or Client instructions in the Work Diaries.
- The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation.
- If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.
- If Client or Freelancer rejects Upwork’s proposed, non-binding resolution then Client and/or Freelancer must pursue the Dispute independently.
- Upwork reserves the right to review the Freelancer’s work for 30 days prior to the date of the request for Dispute Assistance for compliance with Hourly Payment Protection requirements, and in its sole discretion, to make adjustments to invoices, and to direct Upwork Escrow to make appropriate releases to Client if it finds work that clearly does not relate Hourly Contract requirements or Client instructions in the Work Diaries or violations of the Terms of Service during its review of the work.
Effective September 12, 2016 to April 20, 2018
DownloadTable of Contents
- Client and Freelancer have submitted joint written instructions for a Release.
- Client has approved all or a portion of the Freelancer’s weekly Time Log. This Release Condition will apply to and only for time recorded by the Freelancer that Client has approved.
- Freelancer is a Payroll Employee and has submitted a Time Log under an Engagement that includes the Upwork Payroll Agreement.
- Client has not disputed time recorded on Freelancer’s weekly Time Log during the Dispute Period pursuant to this Agreement. This Release Condition will apply to and only for time recorded by the Freelancer that was not disputed by the Client.
- Upwork reviews Client’s dispute of time recorded on Freelancer’s weekly Time Log for an Engagement with Work Diaries pursuant to this Agreement and determines that the time is related to the Engagement requirements or Client’s instructions documented in the Work Diaries.
- Client initiates a Dispute with respect to Freelancer’s weekly Time Log for an Engagement without Work Diaries pursuant to this Agreement and Client and Freelancer resolve the dispute without the assistance of Upwork.
- Issuance of the final order of a court of competent jurisdiction from which appeal is not taken.
- We believe, in our discretion, that Client or Freelancer has committed or is attempting to commit fraud, illicit acts, or has violated Upwork’s Terms of Service, in which case Upwork may instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law.
- Both Client and Freelancer must have agreed to use Work Diaries upon acceptance of the Hourly Contract, as part of the terms.
- Client must have an Account in good standing, a valid and authenticated default Payment Method, and Client must agree to automatically pay for hours billed by Freelancer through Work Diaries.
- Freelancer’s Account must be in good standing.
- Freelancer must have used Work Diaries enabled to document any and all hours covered by the Hourly Payment Protection for Freelancers.
- Freelancer must have provided adequate comments for the screenshots documented by Work Diaries prior to submitting its invoice.
- The screenshots documented by Work Diaries must be clearly related to the applicable Hourly Contract requirements or Client instructions in the Work Diaries.
- The number of hours billed must be within the hours authorized by the Client for the week in the Work Diaries.
- We believe, in our sole discretion, that fraud, illicit acts, or a violation of Upwork’s Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including to return the proceeds of such acts to their source of payment.
- Both Client and Freelancer must agree to use Work Diaries as part of the Hourly Contract terms.
- Client must have an Account in good standing and a valid and authenticated default Payment Method, and Client must agree to automatically pay for hours billed by Freelancer through Work Diaries. Within the Time Log Review Period, Client must submit a Dispute specifically identifying the time billed that is not clearly related to either the Hourly Contract requirements or Client instructions in the Work Diaries.
- The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any).
- If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.
- If Client and/or Freelancer disagree with Upwork’s proposed, non-binding resolution then Client and/or Freelancer must pursue the Dispute independently.
- Upwork reserves the right to review the Freelancer’s work for 30 days prior to the date of the request for Dispute Assistance for compliance with Hourly Payment Protection requirements, and in its sole discretion, to make adjustments to invoices, and to direct Upwork Escrow to make appropriate releases to Client if it finds work that clearly does not relate Hourly Contract requirements or Client instructions in the Work Diaries or violations of the Terms of Service during its review of the work.
Effective May 3, 2016 to March 22, 2018
DownloadTable of Contents
- Client and Freelancer have submitted joint written instructions for a Release.
- Client has approved all or a portion of the Freelancer’s weekly Time Log. This Release Condition will apply to and only for time recorded by the Freelancer that Client has approved.
- Freelancer is a Payroll Employee and has submitted a Time Log under an Engagement that includes the Upwork Payroll Agreement.
- Client has not disputed time recorded on Freelancer’s weekly Time Log during the Dispute Period pursuant to this Agreement. This Release Condition will apply to and only for time recorded by the Freelancer that was not disputed by the Client.
- Upwork reviews Client’s dispute of time recorded on Freelancer’s weekly Time Log for an Engagement with Work Diaries pursuant to this Agreement and determines that the time is related to the Engagement requirements or Client’s instructions documented in the Work Diaries.
- Client initiates a Dispute with respect to Freelancer’s weekly Time Log for an Engagement without Work Diaries pursuant to this Agreement and Client and Freelancer resolve the dispute without the assistance of Upwork.
- Issuance of the final order of a court of competent jurisdiction from which appeal is not taken.
- We believe, in our discretion, that Client or Freelancer has committed or is attempting to commit fraud, illicit acts, or has violated Upwork’s Terms of Service, in which case Upwork may instruct EEC to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law.
- Both Client and Freelancer must have agreed to use Work Diaries upon acceptance of the Hourly Contract, as part of the terms.
- Client must have an Account in good standing, a valid and authenticated default Payment Method, and Client must agree to automatically pay for hours billed by Freelancer through Work Diaries.
- Freelancer’s Account must be in good standing.
- Freelancer must have used Work Diaries enabled to document any and all hours covered by the Hourly Payment Protection for Freelancers.
- Freelancer must have provided adequate comments for the screenshots documented by Work Diaries prior to submitting its invoice.
- The screenshots documented by Work Diaries must be clearly related to the applicable Hourly Contract requirements or Client instructions in the Work Diaries.
- The number of hours billed must be within the hours authorized by the Client for the week in the Work Diaries.
- We believe, in our sole discretion, that fraud, illicit acts, or a violation of Upwork’s Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct EEC to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including to return the proceeds of such acts to their source of payment.
- Both Client and Freelancer must agree to use Work Diaries as part of the Hourly Contract terms.
- Client must have an Account in good standing and a valid and authenticated default Payment Method, and Client must agree to automatically pay for hours billed by Freelancer through Work Diaries. Within the Time Log Review Period, Client must submit a Dispute specifically identifying the time billed that is not clearly related to either the Hourly Contract requirements or Client instructions in the Work Diaries.
- The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any).
- If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that EEC is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.
- If Client and/or Freelancer disagree with Upwork’s proposed, non-binding resolution then Client and/or Freelancer must pursue the Dispute independently.
- Upwork reserves the right to review the Freelancer’s work for 30 days prior to the date of the request for Dispute Assistance for compliance with Hourly Payment Protection requirements, and in its sole discretion, to make adjustments to invoices, and to direct EEC to make appropriate releases to Client if it finds work that clearly does not relate Hourly Contract requirements or Client instructions in the Work Diaries or violations of the Terms of Service during its review of the work.
Effective March 22, 2018 to March 22, 2018
DownloadTable of Contents
- Time LogsFor Hourly Contracts, Time Logs are generated for hours worked until 11:59 PM UTC, each Monday following the week in which the hours were worked (the “Time Log Deadline”). Freelancer irrevocably authorizes and instructs Upwork, as its agent, to (i) create an invoice on behalf of Freelancer for payment due based upon the hours recorded on the weekly Time Log before the Time Log Deadline; and (ii) submit the invoice on behalf of Freelancer to Freelancer’s Client for payment.By recording time on a Time Log and allowing an invoice to be created based on that Time Log, Freelancer represents and warrants that (y) Freelancer has completed the applicable Freelancer Services fully and satisfactorily; and (z) the hours Freelancer reports are true, accurate and complete.
- Time Log ReviewClient must review and approve or dispute the weekly Time Log by 11:59 PM UTC of the Friday following submission of the Time Log (the “Dispute Period”). Payments will be held in escrow, providing 4 additional days to review and dispute work before funds are released. During the Dispute Period, Client may initiate a Dispute as to some or all of the time recorded on the Time Log.On the Friday of the week following submission of the Time Log, Client will be deemed to have approved all undisputed time, and Upwork’s Affiliate, Elance Escrow Corporation (“EEC”), will release escrow funds as described in this Agreement.Notwithstanding the foregoing, all hours worked recorded and submitted by Payroll Employee on the Upwork website will be deemed approved by Client automatically, and Client authorizes those hours to be paid to the Staffing Provider by Client’s account each Monday following the week in which the hours were worked.Client may not reject time or file a Dispute for Payroll Employee Time Logs.
- Client and Freelancer have submitted joint written instructions for a Release.
- Client has approved all or a portion of the Freelancer’s weekly Time Log. This Release Condition will apply to and only for time recorded by the Freelancer that Client has approved.
- Freelancer is a Payroll Employee and has submitted a Time Log under an Engagement that includes the Upwork Payroll Agreement.
- Client has not disputed time recorded on Freelancer’s weekly Time Log during the Dispute Period pursuant to this Agreement. This Release Condition will apply to and only for time recorded by the Freelancer that was not disputed by the Client.
- Upwork reviews Client’s dispute of time recorded on Freelancer’s weekly Time Log for an Engagement with Work Diaries pursuant to this Agreement and determines that the time is related to the Engagement requirements or Client’s instructions documented in the Work Diaries.
- Client initiates a Dispute with respect to Freelancer’s weekly Time Log for an Engagement without Work Diaries pursuant to this Agreement and Client and Freelancer resolve the dispute without the assistance of Upwork.
- Issuance of the final order of a court of competent jurisdiction from which appeal is not taken.
- We believe, in our discretion, that Client or Freelancer has committed or is attempting to commit fraud, illicit acts, or has violated Upwork’s Terms of Service, in which case Upwork may instruct EEC to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law.
- Both Client and Freelancer must have agreed to use Work Diaries upon acceptance of the Hourly Contract, as part of the terms.
- Client must have an Account in good standing, a valid and authenticated default Payment Method, and Client must agree to automatically pay for hours billed by Freelancer through Work Diaries.
- Freelancer’s Account must be in good standing.
- Freelancer must have used Work Diaries enabled to document any and all hours covered by the Hourly Payment Protection for Freelancers.
- Freelancer must have provided adequate comments for the screenshots documented by Work Diaries prior to submitting its invoice.
- The screenshots documented by Work Diaries must be clearly related to the applicable Hourly Contract requirements or Client instructions in the Work Diaries.
- The number of hours billed must be within the hours authorized by the Client for the week in the Work Diaries.
- Within five days after notification of rejected or unpaid time, Freelancer must submit a Dispute specifically identifying the documented work not otherwise paid for by their Client through the Escrow Services.
- Disputes Initiated via the PlatformFor Hourly-Rate Contracts, Client may dispute Freelancer’s hours reported in the Time Log for the prior work week (Sunday 11:59 p.m. UTC to Sunday 11:59 p.m. UTC) during the five days following the close of the weekly invoice period (Monday 12:01 a.m. UTC to Friday 11:59 p.m. UTC) (the “Dispute Period”). It is Client’s responsibility to review the Time Log of every Hourly-Rate Contract on a weekly basis and to file any disputes during the Dispute Period. Once the Dispute Period expires, Client will be deemed to have accepted the Freelancer Services and Freelancer Fees and can no longer dispute them. Disputes can only address the hours billed, not the quality of the Freelancer Services or the Work Product provided under Hourly-Rate Contracts. If Client disputes Freelancer’s hours reported in the Time Log under an Hourly-Rate Contract during the Dispute Period, Client and Freelancer are encouraged to resolve the dispute between themselves. If Client and Freelancer fail to come to a resolution, Upwork will promptly investigate the Time Log and determine, in our sole discretion, whether an adjustment is appropriate. Upwork’s determination of such dispute shall be final.If Client’s payment is unsuccessful, Upwork will review the work to determine if it qualifies for Hourly Payment Protection. If Upwork, in its sole discretion, determines that the work qualifies for Hourly Payment Protection, it will make payment to the Freelancer.Client may choose to approve Freelancer’s work prior to the end of the dispute period it is satisfied with Freelancer’s work and hours. If Client releases payment to Freelancer prior to the end of the dispute period, Client certifies that it accepts the work and waives any further right to dispute.You further acknowledge and agree that Upwork and Affiliates are not and will not be a party to any such dispute. EEC may, at its sole discretion, withhold or delay payment in the event of dispute between a Client and a Freelancer. Clients may not dispute hours worked with respect to any worker engaged as an employee through Upwork Payroll, but Clients may terminate such assignments if they are not satisfied with productivity or for any other lawful reason.
- Upwork Dispute AssistanceNon-Binding Dispute Assistance is available within 30 days of the date of the last release of funds from Client to Freelancer. If Client or Freelancer contacts Upwork via support ticket within 30 days of the date of the last payment from Client to Freelancer and requests Non-Binding Dispute Assistance, Upwork will attempt to assist Client and Freelancer by reviewing the Dispute and proposing a mutual, non-binding resolution. Upwork will only review the 30 days of work performed prior to the Dispute date.
- The Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any).
- If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that EEC is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.
- If Client and/or Freelancer disagree with Upwork’s proposed, non-binding resolution then Client and/or Freelancer must pursue the Dispute independently.
- Upwork reserves the right to review the Freelancer’s work for thirty days prior to the date of the request for Dispute Assistance for compliance with Hourly Payment Protection requirements, and in its sole discretion, to make adjustments to invoices, and to direct EEC to make appropriate releases to Client if it finds non-compliant work or other policy violations during its review of the work.
Escrow Instructions
Fee and ACH Authorization Agreement
Effective October 23, 2019
DownloadTable of Contents
TOTAL FREELANCER FEES COLLECTED FROM CLIENT (per Engagement Relationship) | SERVICE FEE RATES |
$500.00 and below | 20% |
| $500.01 to $10,000.00 | 10% |
| $10,000.01 and up | 5% |
Below are some examples of Tiered Pricing.
FREELANCER FEES | SERVICE FEE RATES | SERVICE FEES |
$500 | 20% | $100 ($500 x 20%) |
| $100 | 10% | $10 ($100 x 10%) |
| Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $600) | Total Service Fees: $110 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
$600 | 10% | $60 ($600 x 10%) |
Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $1,200) | Total Service Fees: $60 |
If the same Freelancer and Client enter into additional Fixed-Price Contracts for different Service Contracts, the Freelancer Fees for each Service Contract will count toward the total Freelancer Fees collected for purposes of determining the Tiered Pricing that applies to the Service Fees. If the Freelancer collects $10,000 in Freelancer Fees from the Client, then the Service Fee on any additional Freelancer Fees for the Engagement Relationship with the Client will be 5% of the Freelancer Fees. For example, if the Freelancer has collected a total of $15,000 in Freelancer Fees during the Engagement Relationship and the Freelancer and Client enter into a new Fixed-Price Contract for $1,000, the Service Fee would be determined as follows:
FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
$1,000 | 5% | $50 ($1,000 x 5%) |
Total Freelancer Fees: $1,000 (Total Engagement Relationship Fees: $16,000) | Total Service Fees: $50 |
HOURS WORKED | FREELANCER FEES (hours x freelancer rate) | SERVICE FEE RATES | SERVICE FEES |
First 10 hours | $500 | 20% | $100 |
190 (Hour 11 to 200) | $9,500 | 10% | $950 |
200 (Hour 200 to 400) | $10,000 | 5% | $500 |
| Total Hours: 400 | Total Freelancer Fees: $20,000 | Total Service Fees: $1,550 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
CONTRACT TYPE | SERVICE FEE | FREELANCER FEES | SERVICE FEES |
Fixed-Price | 10% | $500 | $50 |
Hourly | 10% | $50 per hour | $5 per hour |
Effective September 19, 2019 to October 23, 2019
DownloadTable of Contents
| TOTAL FREELANCER FEES COLLECTED FROM CLIENT (per Engagement Relationship) | SERVICE FEE RATES |
| $500.00 and below | 20% |
| $500.01 to $10,000.00 | 10% |
| $10,000.01 and up | 5% |
Below are some examples of Tiered Pricing.
| FREELANCER FEES | SERVICE FEE RATES | SERVICE FEES |
| $500 | 20% | $100 ($500 x 20%) |
| $100 | 10% | $10 ($100 x 10%) |
| Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $600) | | Total Service Fees: $110 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
| FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
| $600 | 10% | $60 ($600 x 10%) |
| Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $1,200) | | Total Service Fees: $60 |
If the same Freelancer and Client enter into additional Fixed-Price Contracts for different Service Contracts, the Freelancer Fees for each Service Contract will count toward the total Freelancer Fees collected for purposes of determining the Tiered Pricing that applies to the Service Fees. If the Freelancer collects $10,000 in Freelancer Fees from the Client, then the Service Fee on any additional Freelancer Fees for the Engagement Relationship with the Client will be 5% of the Freelancer Fees. For example, if the Freelancer has collected a total of $15,000 in Freelancer Fees during the Engagement Relationship and the Freelancer and Client enter into a new Fixed-Price Contract for $1,000, the Service Fee would be determined as follows:
| FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
| $1,000 | 5% | $50 ($1,000 x 5%) |
| Total Freelancer Fees: $1,000 (Total Engagement Relationship Fees: $16,000) | | Total Service Fees: $50 |
| HOURS WORKED | FREELANCER FEES (hours x freelancer rate) | SERVICE FEE RATES | SERVICE FEES |
| First 10 hours | $500 | 20% | $100 |
| 190 (Hour 11 to 200) | $9,500 | 10% | $950 |
| 200 (Hour 200 to 400) | $10,000 | 5% | $500 |
| Total Hours: 400 | Total Freelancer Fees: $20,000 | | Total Service Fees: $1,550 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
| CONTRACT TYPE | SERVICE FEE | FREELANCER FEES | SERVICE FEES |
| Fixed-Price | 10% | $500 | $50 |
| Hourly | 10% | $50 per hour | $5 per hour |
Effective August 17, 2019 to September 19, 2019
DownloadTable of Contents
| TOTAL FREELANCER FEES COLLECTED FROM CLIENT (per Engagement Relationship) | SERVICE FEE RATES |
| $500.00 and below | 20% |
| $500.01 to $10,000.00 | 10% |
| $10,000.01 and up | 5% |
Below are some examples of Tiered Pricing.
| FREELANCER FEES | SERVICE FEE RATES | SERVICE FEES |
| $500 | 20% | $100 ($500 x 20%) |
| $100 | 10% | $10 ($100 x 10%) |
| Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $600) | | Total Service Fees: $110 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
| FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
| $600 | 10% | $60 ($600 x 10%) |
| Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $1,200) | | Total Service Fees: $60 |
If the same Freelancer and Client enter into additional Fixed-Price Contracts for different Service Contracts, the Freelancer Fees for each Service Contract will count toward the total Freelancer Fees collected for purposes of determining the Tiered Pricing that applies to the Service Fees. If the Freelancer collects $10,000 in Freelancer Fees from the Client, then the Service Fee on any additional Freelancer Fees for the Engagement Relationship with the Client will be 5% of the Freelancer Fees. For example, if the Freelancer has collected a total of $15,000 in Freelancer Fees during the Engagement Relationship and the Freelancer and Client enter into a new Fixed-Price Contract for $1,000, the Service Fee would be determined as follows:
| FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
| $1,000 | 5% | $50 ($1,000 x 5%) |
| Total Freelancer Fees: $1,000 (Total Engagement Relationship Fees: $16,000) | | Total Service Fees: $50 |
| HOURS WORKED | FREELANCER FEES (hours x freelancer rate) | SERVICE FEE RATES | SERVICE FEES |
| First 10 hours | $500 | 20% | $100 |
| 190 (Hour 11 to 200) | $9,500 | 10% | $950 |
| 200 (Hour 200 to 400) | $10,000 | 5% | $500 |
| Total Hours: 400 | Total Freelancer Fees: $20,000 | | Total Service Fees: $1,550 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
| CONTRACT TYPE | SERVICE FEE | FREELANCER FEES | SERVICE FEES |
| Fixed-Price | 10% | $500 | $50 |
| Hourly | 10% | $50 per hour | $5 per hour |
Effective June 12, 2019 to August 17, 2019
DownloadTable of Contents
| TOTAL FREELANCER FEES COLLECTED FROM CLIENT (per Engagement Relationship) | SERVICE FEE RATES |
| $500.00 and below | 20% |
| $500.01 to $10,000.00 | 10% |
| $10,000.01 and up | 5% |
Below are some examples of Tiered Pricing.
| FREELANCER FEES | SERVICE FEE RATES | SERVICE FEES |
| $500 | 20% | $100 ($500 x 20%) |
| $100 | 10% | $10 ($100 x 10%) |
| Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $600) | | Total Service Fees: $110 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
| FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
| $600 | 10% | $60 ($600 x 10%) |
| Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $1,200) | | Total Service Fees: $60 |
If the same Freelancer and Client enter into additional Fixed-Price Contracts for different Service Contracts, the Freelancer Fees for each Service Contract will count toward the total Freelancer Fees collected for purposes of determining the Tiered Pricing that applies to the Service Fees. If the Freelancer collects $10,000 in Freelancer Fees from the Client, then the Service Fee on any additional Freelancer Fees for the Engagement Relationship with the Client will be 5% of the Freelancer Fees. For example, if the Freelancer has collected a total of $15,000 in Freelancer Fees during the Engagement Relationship and the Freelancer and Client enter into a new Fixed-Price Contract for $1,000, the Service Fee would be determined as follows:
| FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
| $1,000 | 5% | $50 ($1,000 x 5%) |
| Total Freelancer Fees: $1,000 (Total Engagement Relationship Fees: $16,000) | | Total Service Fees: $50 |
| HOURS WORKED | FREELANCER FEES (hours x freelancer rate) | SERVICE FEE RATES | SERVICE FEES |
| First 10 hours | $500 | 20% | $100 |
| 190 (Hour 11 to 200) | $9,500 | 10% | $950 |
| 200 (Hour 200 to 400) | $10,000 | 5% | $500 |
| Total Hours: 400 | Total Freelancer Fees: $20,000 | | Total Service Fees: $1,550 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
| CONTRACT TYPE | SERVICE FEE | FREELANCER FEES | SERVICE FEES |
| Fixed-Price | 10% | $500 | $50 |
| Hourly | 10% | $50 per hour | $5 per hour |
Effective June 12, 2019 to June 12, 2019
DownloadTable of Contents
| TOTAL FREELANCER FEES COLLECTED FROM CLIENT (per Engagement Relationship) | SERVICE FEE RATES |
| $500.00 and below | 20% |
| $500.01 to $10,000.00 | 10% |
| $10,000.01 and up | 5% |
Below are some examples of Tiered Pricing.
| FREELANCER FEES | SERVICE FEE RATES | SERVICE FEES |
| $500 | 20% | $100 ($500 x 20%) |
| $100 | 10% | $10 ($100 x 10%) |
| Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $600) | | Total Service Fees: $110 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
| FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
| $600 | 10% | $60 ($600 x 10%) |
| Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $1,200) | | Total Service Fees: $60 |
If the same Freelancer and Client enter into additional Fixed-Price Contracts for different Service Contracts, the Freelancer Fees for each Service Contract will count toward the total Freelancer Fees collected for purposes of determining the Tiered Pricing that applies to the Service Fees. If the Freelancer collects $10,000 in Freelancer Fees from the Client, then the Service Fee on any additional Freelancer Fees for the Engagement Relationship with the Client will be 5% of the Freelancer Fees. For example, if the Freelancer has collected a total of $15,000 in Freelancer Fees during the Engagement Relationship and the Freelancer and Client enter into a new Fixed-Price Contract for $1,000, the Service Fee would be determined as follows:
| FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
| $1,000 | 5% | $50 ($1,000 x 5%) |
| Total Freelancer Fees: $1,000 (Total Engagement Relationship Fees: $16,000) | | Total Service Fees: $50 |
| HOURS WORKED | FREELANCER FEES (hours x freelancer rate) | SERVICE FEE RATES | SERVICE FEES |
| First 10 hours | $500 | 20% | $100 |
| 190 (Hour 11 to 200) | $9,500 | 10% | $950 |
| 200 (Hour 200 to 400) | $10,000 | 5% | $500 |
| Total Hours: 400 | Total Freelancer Fees: $20,000 | | Total Service Fees: $1,550 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
| CONTRACT TYPE | SERVICE FEE | FREELANCER FEES | SERVICE FEES |
| Fixed-Price | 10% | $500 | $50 |
| Hourly | 10% | $50 per hour | $5 per hour |
Effective April 2, 2019 to June 12, 2019
DownloadTable of Contents
TOTAL FREELANCER FEES COLLECTED FROM CLIENT (per Engagement Relationship) | SERVICE FEE RATES |
$500.00 and below | 20% |
| $500.01 to $10,000.00 | 10% |
| $10,000.01 and up | 5% |
Below are some examples of Tiered Pricing.
FREELANCER FEES | SERVICE FEE RATES | SERVICE FEES |
$500 | 20% | $100 ($500 x 20%) |
| $100 | 10% | $10 ($100 x 10%) |
Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $600) | Total Service Fees: $110 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
$600 | 10% | $60 ($600 x 10%) |
Total Freelancer Fees: $600 (Total Engagement Relationship Fees: $1,200) | Total Service Fees: $60 |
If the same Freelancer and Client enter into additional Fixed-Price Contracts for different Service Contracts, the Freelancer Fees for each Service Contract will count toward the total Freelancer Fees collected for purposes of determining the Tiered Pricing that applies to the Service Fees. If the Freelancer collects $10,000 in Freelancer Fees from the Client, then the Service Fee on any additional Freelancer Fees for the Engagement Relationship with the Client will be 5% of the Freelancer Fees. For example, if the Freelancer has collected a total of $15,000 in Freelancer Fees during the Engagement Relationship and the Freelancer and Client enter into a new Fixed-Price Contract for $1,000, the Service Fee would be determined as follows:
FREELANCER FEES | SERVICE FEE RATE | SERVICE FEES |
$1,000 | 5% | $50 ($1,000 x 5%) |
Total Freelancer Fees: $1,000 (Total Engagement Relationship Fees: $16,000) | Total Service Fees: $50 |
HOURS WORKED | FREELANCER FEES (hours x freelancer rate) | SERVICE FEE RATES | SERVICE FEES |
First 10 hours | $500 | 20% | $100 |
190 (Hour 11 to 200) | $9,500 | 10% | $950 |
200 (Hour 200 to 400) | $10,000 | 5% | $500 |
| Total Hours: 400 | Total: $20,000 | Total Service Fees: $1,550 |
Note: The Service Fee will appear as a single amount in your Account, rather than separate amounts as shown in the example above. Examples in this Agreement are provided for illustrative purposes only and are not binding. Because of rounding, the Service Fees charged may differ slightly.
CONTRACT TYPE | SERVICE FEE | FREELANCER FEES | SERVICE FEES |
Fixed-Price | 10% | $500 | $50 |
Hourly | 10% | $50 per hour | $5 per hour |
Effective February 25, 2019 to April 2, 2019
DownloadTable of Contents
Effective April 19, 2018 to February 25, 2019
DownloadTable of Contents
Effective December 14, 2016 to April 19, 2018
DownloadTable of Contents
Effective September 12, 2016 to March 22, 2018
DownloadTable of Contents
Effective June 2, 2016 to March 22, 2018
DownloadTable of Contents
Fixed-Price Escrow Instructions
Effective April 20, 2018
DownloadTable of Contents
- Client clicks to release funds to Freelancer.
- Client does not take any action for 14 days from the date of a Freelancer’s Release request, in which case Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount associated with to the applicable milestone in connection with such Release request.
- Freelancer cancels the contract before a milestone payment has been released to Freelancer, in which case the funds are to be returned to the Client.
- Client and Freelancer have submitted joint written instructions for a Release to either Freelancer Escrow Account or Client Escrow Account, as applicable.
- Client and Freelancer agree to close the contract without release of funds, in which case the funds are to be returned to the Client.
- Client or Freelancer has failed to make its Arbitration payment or paid its fair share of the Arbitration costs pursuant to the Dispute Assistance Program, in which case the funds are released to the Party that has made its Arbitration Payment.
- Both Client and Freelancer have failed to timely submit to Arbitration for an unresolved Dispute as such term is defined in the Dispute Assistance Program, in which case the funds are released to the Client.
- Client or Freelancer has failed timely to respond to an Upwork Dispute Assistance notification as required by the Dispute Assistance Program, in which case the funds are released to the User that has participated.
- Client or Freelancer otherwise has failed to comply with the Dispute Assistance Program, in which case the funds are to be released to the User that has complied with the Dispute Assistance Program.
- Submittal of a final award of an arbitrator appointed pursuant to the Dispute Assistance Program, in which case the funds will be released in accordance with such award.
- Issuance of the final order of a court of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
- We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
- Upwork will notify Client when the Fixed-Price Contract becomes Dormant (“Dormant Date”).
- If no activity other than Release requests has occurred within 7 days after the Dormant Date, Upwork will notify the Freelancer that the Fixed-Price Contract is Dormant.
- If neither Freelancer nor Client take any action for 7 days after the Dormant Date, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release escrow funds to Client.
- If Freelancer submits a Release request and client does not take any action for 14 days from the date of the Release request, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount related to the milestone with Release request.
- All funds released to Freelancer under this Section, Dormant Engagements, will be subject to the applicable Service Fees.
- “Arbitration” means binding non-appearance based Arbitration by a neutral third party as described in Section 6.
- “Arbitration Payment” means Client’s or Freelancer’s applicable portion of the costs of Arbitration as more particularly described in this Section 6.
- “Arbitration Limitations Date” means the date 30 days after the date a Dispute is filed via the Site or via support ticket with Upwork.
- "Contract Room" means the contract room on the Site for the particular Fixed-Price Contract, including the contract terms, messages and files, and milestones and payments.
- “Dispute” means a dispute between a Client and Freelancer concerning a Fixed-Price Contract and covered by this Dispute Assistance Program.
- “Dispute Assistance Deadline” means the date 30 days after the Client was billed for the last milestone.
- “Dispute Assistance Program” means the Dispute assistance program set forth in this Section 6.
- “Upwork Dispute Assistance” means the Dispute assistance provided by Upwork as set forth in this Section 6.
- The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any).
- If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the proposed resolution.
- If Client or Freelancer rejects Upwork’s proposed, non-binding resolution, they may proceed to Arbitration. If Client and Freelancer do not choose to arbitrate, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Client all funds held in Escrow.
- If Client or Freelancer chooses to arbitrate by notifying Upwork via support ticket of their intent to arbitrate, Upwork will notify both Client and Freelancer via ticket that they must make the Arbitration Payment within 5 business days of the notice (the “First Arbitration Notice“). If both parties make the Arbitration Payment (including after initial notice of non-payment), then Upwork will deliver instructions for initiating Arbitration.
- If Client or Freelancer does not make the Arbitration Payment within 5 business days of the First Arbitration Notice, Freelancer and Client will be deemed to have irrevocably authorized and instructed Upwork Escrow to, and Upwork Escrow will, release the disputed funds to the party that paid the Arbitration Payment to the extent that any disputed funds remain in the Escrow Account. If no funds remain in the Escrow, Upwork will close the Dispute.
- If Client and Freelancer both do not make the Arbitration Payment by the Arbitration Limitations Date, then Client and Freelancer will be deemed to have authorized and instructed Upwork Escrow to, and Upwork Escrow will, release the disputed funds to Client, to the extent that any disputed funds remain in the Escrow Account, if no funds remain Upwork will close the Dispute.
- Each party will be provided with an identical list of five potential arbitrators and may have up to three calendar days to strike two potential arbitrators and rank the remaining in order of preference. If any party does not return the list within five calendar days, all persons named therein will be deemed acceptable.
- From among the arbitrators approved on both lists and in accordance with the designated order of mutual preference, the AAA will invite the arbitrator to serve. If for any reason the appointment cannot be made according to this procedure, the AAA will have the power to make the appointment without submission of additional lists.
- Any arbitrator will be impartial and independent and will perform his or her duties with diligence and in good faith, and will be subject to disqualification for any grounds provided by applicable law.
- Neither Upwork nor any party or party representative will communicate ex parte with an arbitrator or candidate for arbitrator concerning the Arbitration. Notwithstanding the above, Upwork and an arbitrator may communicate ex parte solely for the purpose of enabling the arbitrator to access and use the Site, and the Contract Room, and the information contained therein, associated with the Fixed-Price Contract in Dispute.
- The amount at issue in any claims or counterclaims relating to a Fixed-Price Contract will be limited to the sum still held in Escrow and the sum previously released from Escrow for the Fixed-Price Contract.
- The Arbitration Plaintiff may submit a statement of the case (“Initial Statement”), not to exceed 1,500 words, within three business days of being notified that the case has been filed with the AAA. The Arbitration Plaintiff will post the Initial Statement to the Contract Room.
- The Arbitration Respondent may submit a response (“Response Statement”), not to exceed 1,500 words, within three business days of receiving the Initial Statement. The Arbitration Respondent will post the Response Statement to the Contract Room.
- Either party may elect to use their dispute notice form or dispute response (as applicable) in lieu of creating a separate Initial Statement or Response Statement for the Arbitration. No party may submit new or different claims after the case has been initiated.
- All proceedings will be “on documents” and the evidence admissible will consist solely and exclusively of Contract Room contents at the time the Dispute was submitted to the Upwork Dispute resolution process. Any communication taking place outside the Contract Room must have been posted to the Contract Room within 24 hours of the original transmission of that communication in order to be admissible. Once Arbitration is initiated, the arbitrator can make an award based solely on the Contract Room contents and material submitted to initiate the Arbitration. The failure of one party or the other to respond to an arbitrator request or otherwise continue to participate in the Arbitration will not prevent the arbitrator from making an award.
- The language of the Arbitration will be English.
- At the arbitrator’s sole discretion, the arbitrator may permit or require the submission of additional written statements from the parties (“Additional Arguments”). The arbitrator is not required to permit Additional Arguments. If the arbitrator permits Additional Arguments, the arbitrator will establish the schedule and rules for the submission of such Additional Arguments, including any limits on the length of such Additional Arguments.
- The Arbitration will conclude within 30 calendar days from the date of submission to the AAA, and the arbitrator may grant an extension for good cause not to exceed 14 calendar days.
- Communications by either party to the arbitrator will be shared with all parties.
- All awards will be final, non-appealable and enforceable by any court of competent jurisdiction.
- Neither the AAA nor any arbitrator in a proceeding under these rules and procedures is a necessary or proper party in judicial proceedings relating to the Arbitration. The parties to an Arbitration under these rules and procedures will be deemed to have consented that neither the AAA nor any arbitrator will be liable to any party in any action for damages or injunctive relief for any act or omission in connection with any Arbitration under these rules and procedures.
Effective September 12, 2016 to April 20, 2018
DownloadTable of Contents
- Client clicks to release funds to Freelancer.
- Freelancer cancels the contract before a milestone payment has been released.
- Client and Freelancer have submitted joint written instructions for a Release.
- Client and Freelancer agree to close the contract.
- Client or Freelancer has failed to make its Arbitration payment initiated by the other Party pursuant to the Dispute Assistance Policy in Section 5 of these instructions.
- Client and Freelancer have failed to timely submit to Arbitration for an unresolved Dispute as such term is defined in the Dispute Assistance Policy in Section 5 of these instructions.
- Client or Freelancer has failed timely to respond to an Upwork Dispute Assistance notification as required by the Dispute Assistance Policy in Section 5 of these instructions.
- Client or Freelancer has failed timely to pay for its share of Arbitration costs as required by the Dispute Assistance Policy in Section 5 of these instructions.
- Client or Freelancer otherwise has failed to comply with the Dispute Assistance Policy in Section 5 of these instructions.
- Submittal of the final binding award of an arbitrator appointed pursuant to the Dispute Assistance Policy in Section 5 of these instructions.
- Issuance of the final order of a court of competent jurisdiction from which appeal is not taken.
- We believe, in our sole discretion, that fraud, illicit acts, or a violation of Upwork’s Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including to return the proceeds of such acts to their source of payment.
- Upwork will notify Client when the Engagement becomes Dormant (“Dormant Date”).
- If no activity other than Release requests has occurred within 7 days after the Dormant Date, Upwork will notify the Freelancer that the Engagement is Dormant.
- If Freelancer and Client take no action for 7 days after the Dormant Date, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release escrow funds to Client.
- If Freelancer submits a Release request and client does not take any action for 14 days from the date of the Release request, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount related to the milestone with Release request.
- All funds released to Freelancer under this Section, Dormant Engagements, will be subject to the applicable Service Fees for Freelancers.
- “Arbitration” means binding non-appearance based Arbitration by a neutral third party as described in Section 5.
- “Arbitration Payment” means Client’s or Freelancer’s applicable portion of the costs of Arbitration as more particularly described in Section 5 below.
- “Arbitration Limitations Date” means the date 30 days after the date a Dispute is filed via the Site or via support ticket with Upwork.
- “Dispute” means a dispute between a Client and Freelancer concerning a Fixed-Price Engagement and covered by this Dispute Assistance Program.
- “Dispute Assistance Deadline” means the date 30 days after the Client was billed for the last milestone.
- “Upwork Dispute Assistance” means the Dispute assistance provided by Upwork as set forth in this Section 5.
- The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any).
- If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that Upwork Escrow is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the final resolution.
- If Client or Freelancer disagrees with Upwork’s proposed, non-binding resolution, they may proceed to Arbitration. If Client and Freelancer do not choose to arbitrate, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Client all funds held in Escrow.
- If Client or Freelancer chooses to arbitrate by notifying Upwork via support ticket of their intent to arbitrate, Upwork will notify both Client and Freelancer via ticket that they must make the Arbitration Payment within 5 business days of the notice (the “First Arbitration Notice“). If both parties make the Arbitration Payment (including after initial notice of non-payment), then Upwork will deliver instructions for initiating Arbitration.
- If Client or Freelancer does not make the Arbitration Payment within 5 business days of the notice, Freelancer and Client will be deemed to have irrevocably authorized and instructed Upwork Escrow to, and Upwork Escrow will, release the disputed funds to the party that paid the Arbitration Payment to the extent that any disputed funds remain in the Escrow Account. If no funds remain in the Escrow, Upwork will close the Dispute.
- If Client and Freelancer both do not make the Arbitration Payment by the Arbitration Limitations Date, then Client and Freelancer will be deemed to have authorized and instructed Upwork Escrow to, and Upwork Escrow will, release the disputed funds to Client, to the extent that any disputed funds remain in the Escrow Account, if no funds remain Upwork will close the Dispute.
- Each party will be provided with an identical list of five potential arbitrators and may have up to three calendar days to strike two potential arbitrators and rank the remaining in order of preference. If any party does not return the list within five calendar days, all persons named therein will be deemed acceptable.
- From among the arbitrators approved on both lists and in accordance with the designated order of mutual preference, the AAA will invite the arbitrator to serve. If for any reason the appointment cannot be made according to this procedure, the AAA will have the power to make the appointment without submission of additional lists.
- Any arbitrator will be impartial and independent and will perform his or her duties with diligence and in good faith, and will be subject to disqualification for any grounds provided by applicable law.
- Neither Upwork nor any party or party representative will communicate ex parte with an arbitrator or candidate for arbitrator concerning the Arbitration. Notwithstanding the above, Upwork and an arbitrator may communicate ex parte solely for the purpose of enabling the arbitrator to access and use the Site, the Workroom, and the information contained therein, associated with the Engagement in Dispute.
- The amount at issue in any claims or counterclaims relating to an Engagement will be limited to the sum still held in Escrow and the sum previously released from Escrow for the Engagement.
- The Arbitration Plaintiff may submit a statement of the case (“Initial Statement”), not to exceed 1,500 words, within three business days of being notified that the case has been filed with the AAA. The Arbitration Plaintiff will post the Initial Statement to the Workroom.
- The Arbitration Respondent may submit a response (“Response Statement”), not to exceed 1,500 words, within three business days of receiving the Initial Statement. The Arbitration Respondent will post the Response Statement to the Workroom.
- Either party may elect to use their dispute notice form or dispute response (as applicable) in lieu of creating a separate Initial Statement or Response Statement for the Arbitration. No party may submit new or different claims after the case has been initiated.
- All proceedings will be “on documents” and the evidence admissible will consist solely and exclusively of Workroom contents at the time the Dispute was submitted to the Upwork Dispute resolution process. Any communication taking place outside the Workroom must have been posted to the Workroom within 24 hours of the original transmission of that communication in order to be admissible. Once Arbitration is initiated, the arbitrator can make an award based solely on the Workroom contents and material submitted to initiate the Arbitration. The failure of one party or the other to respond to an arbitrator request or otherwise continue to participate in the Arbitration will not prevent the arbitrator from making an award.
- The language of the Arbitration will be English.
- At the arbitrator’s sole discretion, the arbitrator may permit or require the submission of additional written statements from the parties (“Additional Arguments”). The arbitrator is not required to permit Additional Arguments. If the arbitrator permits Additional Arguments, the arbitrator will establish the schedule and rules for the submission of such Additional Arguments, including any limits on the length of such Additional Arguments.
- The Arbitration will conclude within 30 calendar days from the date of submission to the AAA, and the arbitrator may grant an extension for good cause not to exceed 14 calendar days.
- Communications by either party to the arbitrator will be shared with all parties.
- All awards will be final, non-appealable and enforceable by any court of competent jurisdiction.
- Neither the AAA nor any arbitrator in a proceeding under these rules and procedures is a necessary or proper party in judicial proceedings relating to the Arbitration. The parties to an Arbitration under these rules and procedures will be deemed to have consented that neither the AAA nor any arbitrator will be liable to any party in any action for damages or injunctive relief for any act or omission in connection with any Arbitration under these rules and procedures.
Effective May 3, 2016 to March 22, 2018
DownloadTable of Contents
- Client clicks to release funds to Freelancer.
- Freelancer cancels the contract before a milestone payment has been released.
- Client and Freelancer have submitted joint written instructions for a Release.
- Client and Freelancer agree to close the contract.
- Client or Freelancer has failed to make its Arbitration payment initiated by the other Party pursuant to the Dispute Assistance Policy in Section 5 of these instructions.
- Client and Freelancer have failed to timely submit to Arbitration for an unresolved Dispute as such term is defined in the Dispute Assistance Policy in Section 5 of these instructions.
- Client or Freelancer has failed timely to respond to an Upwork Dispute Assistance notification as required by the Dispute Assistance Policy in Section 5 of these instructions.
- Client or Freelancer has failed timely to pay for its share of Arbitration costs as required by the Dispute Assistance Policy in Section 5 of these instructions.
- Client or Freelancer otherwise has failed to comply with the Dispute Assistance Policy in Section 5 of these instructions.
- Submittal of the final binding award of an arbitrator appointed pursuant to the Dispute Assistance Policy in Section 5 of these instructions.
- Issuance of the final order of a court of competent jurisdiction from which appeal is not taken.
- We believe, in our sole discretion, that fraud, illicit acts, or a violation of Upwork’s Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct EEC to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including to return the proceeds of such acts to their source of payment.
- Upwork will notify Client when the Engagement becomes Dormant (“Dormant Date”).
- If no activity other than Release requests has occurred within 7 days after the Dormant Date, Upwork will notify the Freelancer that the Engagement is Dormant.
- If Freelancer and Client take no action for 7 days after the Dormant Date, Freelancer and Client agree that EEC is authorized and irrevocably instructed to immediately release escrow funds to Client.
- If Freelancer submits a Release request and client does not take any action for 14 days from the date of the Release request, Freelancer and Client agree that EEC is authorized and irrevocably instructed to immediately release to Freelancer the amount related to the milestone with Release request.
- All funds released to Freelancer under this Section, Dormant Engagements, will be subject to the applicable Service Fees for Freelancers.
- “Arbitration” means binding non-appearance based Arbitration by a neutral third party as described in Section 5.
- “Arbitration Payment” means Client’s or Freelancer’s applicable portion of the costs of Arbitration as more particularly described in Section 5 below.
- “Arbitration Limitations Date” means the date 30 days after the date a Dispute is filed via the Site or via support ticket with Upwork.
- “Dispute” means a dispute between a Client and Freelancer concerning a Fixed-Price Engagement and covered by this Dispute Assistance Program.
- “Dispute Assistance Deadline” means the date 30 days after the Client was billed for the last milestone.
- “Upwork Dispute Assistance” means the Dispute assistance provided by Upwork as set forth in this Section 5.
- The Upwork Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any).
- If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that EEC is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the final resolution.
- If Client or Freelancer disagrees with Upwork’s proposed, non-binding resolution, they may proceed to Arbitration. If Client and Freelancer do not choose to arbitrate, Freelancer and Client agree that EEC is authorized and irrevocably instructed to immediately release to Client all funds held in Escrow.
- If Client or Freelancer chooses to arbitrate by notifying Upwork via support ticket of their intent to arbitrate, Upwork will notify both Client and Freelancer via ticket that they must make the Arbitration Payment within 5 business days of the notice (the “First Arbitration Notice“). If both parties make the Arbitration Payment (including after initial notice of non-payment), then Upwork will deliver instructions for initiating Arbitration.
- If Client or Freelancer does not make the Arbitration Payment within 5 business days of the notice, Freelancer and Client will be deemed to have irrevocably authorized and instructed EEC to, and EEC will, release the disputed funds to the party that paid the Arbitration Payment to the extent that any disputed funds remain in the Escrow Account. If no funds remain in the Escrow, Upwork will close the Dispute.
- If Client and Freelancer both do not make the Arbitration Payment by the Arbitration Limitations Date, then Client and Freelancer will be deemed to have authorized and instructed EEC to, and EEC will, release the disputed funds to Client, to the extent that any disputed funds remain in the Escrow Account, if no funds remain Upwork will close the Dispute.
- Each party will be provided with an identical list of five potential arbitrators and may have up to three calendar days to strike two potential arbitrators and rank the remaining in order of preference. If any party does not return the list within five calendar days, all persons named therein will be deemed acceptable.
- From among the arbitrators approved on both lists and in accordance with the designated order of mutual preference, the AAA will invite the arbitrator to serve. If for any reason the appointment cannot be made according to this procedure, the AAA will have the power to make the appointment without submission of additional lists.
- Any arbitrator will be impartial and independent and will perform his or her duties with diligence and in good faith, and will be subject to disqualification for any grounds provided by applicable law.
- Neither Upwork nor any party or party representative will communicate ex parte with an arbitrator or candidate for arbitrator concerning the Arbitration. Notwithstanding the above, Upwork and an arbitrator may communicate ex parte solely for the purpose of enabling the arbitrator to access and use the Site, the Workroom, and the information contained therein, associated with the Engagement in Dispute.
- The amount at issue in any claims or counterclaims relating to an Engagement will be limited to the sum still held in Escrow and the sum previously released from Escrow for the Engagement.
- The Arbitration Plaintiff may submit a statement of the case (“Initial Statement”), not to exceed 1,500 words, within three business days of being notified that the case has been filed with the AAA. The Arbitration Plaintiff will post the Initial Statement to the Workroom.
- The Arbitration Respondent may submit a response (“Response Statement”), not to exceed 1,500 words, within three business days of receiving the Initial Statement. The Arbitration Respondent will post the Response Statement to the Workroom.
- Either party may elect to use their dispute notice form or dispute response (as applicable) in lieu of creating a separate Initial Statement or Response Statement for the Arbitration. No party may submit new or different claims after the case has been initiated.
- All proceedings will be “on documents” and the evidence admissible will consist solely and exclusively of Workroom contents at the time the Dispute was submitted to the Upwork Dispute resolution process. Any communication taking place outside the Workroom must have been posted to the Workroom within 24 hours of the original transmission of that communication in order to be admissible. Once Arbitration is initiated, the arbitrator can make an award based solely on the Workroom contents and material submitted to initiate the Arbitration. The failure of one party or the other to respond to an arbitrator request or otherwise continue to participate in the Arbitration will not prevent the arbitrator from making an award.
- The language of the Arbitration will be English.
- At the arbitrator’s sole discretion, the arbitrator may permit or require the submission of additional written statements from the parties (“Additional Arguments”). The arbitrator is not required to permit Additional Arguments. If the arbitrator permits Additional Arguments, the arbitrator will establish the schedule and rules for the submission of such Additional Arguments, including any limits on the length of such Additional Arguments.
- The Arbitration will conclude within 30 calendar days from the date of submission to the AAA, and the arbitrator may grant an extension for good cause not to exceed 14 calendar days.
- Communications by either party to the arbitrator will be shared with all parties.
- All awards will be final, non-appealable and enforceable by any court of competent jurisdiction.
- Neither the AAA nor any arbitrator in a proceeding under these rules and procedures is a necessary or proper party in judicial proceedings relating to the Arbitration. The parties to an Arbitration under these rules and procedures will be deemed to have consented that neither the AAA nor any arbitrator will be liable to any party in any action for damages or injunctive relief for any act or omission in connection with any Arbitration under these rules and procedures.
Effective August 7, 2015 to March 22, 2018
DownloadTable of Contents
- Client clicks to release funds to Freelancer.
- Freelancer ends the contract before a milestone payment has been released.
- Client and Freelancer have submitted joint written instructions for a Release.
- Client and Freelancer agree to close the contract.
- Client or Freelancer has failed to make its Arbitration payment initiated by the other Party pursuant to the Dispute Assistance Policy in Section 5 of these instructions.
- Client and Freelancer have failed to timely submit to Arbitration for an unresolved Dispute as such term is defined in the Dispute Assistance Policy in Section 5 of these instructions.
- Client or Freelancer has failed timely to respond to an Upwork Dispute Assistance notification as required by the Dispute Assistance Policy in Section 5 of these instructions.
- Client or Freelancer has failed timely to pay for its share of Arbitration costs as required by the Dispute Assistance Policy in Section 5 of these instructions.
- Client or Freelancer otherwise has failed to comply with the Dispute Assistance Policy in Section 5 of these instructions.
- Submittal of the final binding award of an arbitrator appointed pursuant to the Dispute Assistance Policy in Section 5 of these instructions.
- Issuance of the final order of a court of competent jurisdiction from which appeal is not taken.
- We believe, in our discretion, that one Member has committed or is attempting to commit fraud, illicit acts, or has violated Upwork’s Terms of Service, in which case Upwork may instruct EEC to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law.
- Upwork will notify Client when the Engagement becomes Dormant (“Dormant Date”).
- If no activity other than Release requests has occurred within 7 days after the Dormant Date, Upwork will notify the Freelancer that the Engagement is Dormant.
- If Freelancer and Client take no action for 7 days after the Dormant Date, Freelancer and Client agree that EEC is authorized and irrevocably instructed to immediately release escrow funds to Client.
- If Freelancer submits a Release request and client does not take any action for 14 days from the date of the Release request, Freelancer and Client agree that EEC is authorized and irrevocably instructed to immediately release to Freelancer the amount related to the milestone with Release request.
- All funds released to Freelancer under this Section, Dormant Engagements, will be subject to the applicable Service Fees for Freelancers.
- “Arbitration” means binding non-appearance based Arbitration by a neutral third party as described in Section 5.
- “Arbitration Payment” means Client or Freelancer’s applicable portion of the costs of Arbitration as more particularly described in Section 5 below.
- “Arbitration Limitations Date” means the date 30 days after the date a Dispute is filed via the platform or via support ticket with Upwork.
- “Dispute Assistance Deadline” means the date 30 days after the Client was billed for the last milestone.
- “Upwork Dispute Assistance” means the Dispute assistance provided by Upwork as set forth in this Policy.
- The Disputes team will notify Client and Freelancer via ticket by providing a notice of dispute along with a request for information and supporting documentation (if any).
- If both Client and Freelancer respond to the notice and request for information, then the Disputes team will review the documentation submitted and any information available on the Site that pertains to the Dispute. After review, the Disputes team will propose a mutual, non-binding resolution based on the results of the review.
- The proposed resolution is non-binding; Client and Freelancer can choose whether or not to agree to it. If Client and Freelancer agree in writing to the proposed resolution, Client and Freelancer agree that EEC is authorized and irrevocably instructed to immediately release Escrow funds in accordance with the final resolution.
- If Client and/or Freelancer disagree with Upwork’s proposed, non-binding resolution, they may proceed to Arbitration. If Client and Freelancer do not choose to arbitrate, Freelancer and Client agree that EEC is authorized and irrevocably instructed to immediately release to Client all funds held in Escrow.
- If Client and/or Freelancer choose to arbitrate by notifying Upwork via support ticket of their intent to arbitrate, Upwork will notify Client and/or Freelancer via ticket that they must make the Arbitration Payment within 5business days of the notice. If both parties pay the Arbitration invoice (including after initial notice of non-payment), then Upwork will deliver instructions for initiating Arbitration.
- If Client or Freelancer does not make the Arbitration Payment within 5 business days of the notice, Freelancer and Client will be deemed to have irrevocably authorized and instructed EEC to, and EEC will, release the disputed funds to the party that paid the Arbitration Payment to the extent that any disputed funds remain in the Escrow Account. If no funds remain in the Escrow, Upwork will close the Dispute.
- If Client and Freelancer both do not make the Arbitration Payment by the Arbitration Limitations Date, then Client and Freelancer will be deemed to have authorized and instructed EEC to, and EEC will, release the disputed funds to Client, to the extent that any disputed funds remain in the Escrow Account, if no funds remain Upwork will close the Dispute.
- Each party will be provided with an identical list of five potential arbitrators and may have up to three calendar days to strike two potential arbitrators and rank the remaining in order of preference. If any party does not return the list within five calendar days, all persons named therein will be deemed acceptable.
- From among the arbitrators approved on both lists and in accordance with the designated order of mutual preference, the AAA will invite the arbitrator to serve. If for any reason the appointment cannot be made according to this procedure, the AAA will have the power to make the appointment without submission of additional lists.
- Any arbitrator will be impartial and independent and will perform his or her duties with diligence and in good faith, and will be subject to disqualification for any grounds provided by applicable law.
- Neither Upwork nor any party or party representative will communicate ex parte with an arbitrator or candidate for arbitrator concerning the Arbitration.Notwithstanding the above, Upwork and an arbitrator may communicate ex parte solely for the purpose of enabling the arbitrator to access and use the Site and/or the Workroom associated with the Engagement in Dispute.
- The amount at issue in any claims or counterclaims relating to an Engagement will be limited to the sum still held in Escrow and the sum previously released from Escrow for the Engagement.
- The Arbitration Plaintiff may submit a statement of the case (“Initial Statement”), not to exceed 1,500 words, within three Business Days of being notified that the case has been filed with the AAA.The Arbitration Plaintiff will post the Initial Statement to the Workroom.
- The Arbitration Respondent may submit a response (“Response Statement”), not to exceed 1,500 words, within three Business Days of receiving the Initial Statement. The Arbitration Respondent will post the Response Statement to the Workroom.
- Either party may elect to use their Dispute Notice Form or Dispute Response (as applicable) in lieu of creating a separate Initial Statement or Response Statement for the Arbitration. No party may submit new or different claims after the case has been initiated.
- All proceedings will be “on documents” and the evidence admissible will consist solely and exclusively of Workroom contents at the time the Dispute was submitted to the Upwork Dispute resolution process. Any communication taking place outside the Workroom must have been posted to the Workroom within 24 hours of the original transmission of that communication in order to be admissible. Once Arbitration is initiated, the arbitrator can make an award based solely on the Workroom contents and material submitted to initiate the Arbitration.The failure of one party or the other to respond to an arbitrator request or otherwise continue to participate in the Arbitration will not prevent the arbitrator from making an award.
- The language of the Arbitration will be English.
- At the arbitrator’s sole discretion, the arbitrator may permit or require the submission of additional written statements from the parties (“Additional Arguments”).The arbitrator is not required to permit Additional Arguments.If the arbitrator permits Additional Arguments, the arbitrator will establish the schedule and rules for the submission of such Additional Arguments, including any limits on the length of such Additional Arguments.
- The Arbitration will conclude within 30 calendar days from the date of submission to the AAA, and the arbitrator may grant an extension for good cause not to exceed 14 calendar days.
- Communications by either party to the arbitrator will be shared with all parties.
- All awards will be final, non-appealable and enforceable by any court of competent jurisdiction.
- Neither the AAA nor any arbitrator in a proceeding under these rules and procedures is a necessary or proper party in judicial proceedings relating to the Arbitration.The parties to an Arbitration under these rules and procedures will be deemed to have consented that neither the AAA nor any arbitrator will be liable to any party in any action for damages or injunctive relief for any act or omission in connection with any Arbitration under these rules and procedures.
Freelancer Membership Agreement
Effective October 23, 2019
DownloadTable of Contents
Effective September 19, 2019 to October 23, 2019
DownloadTable of Contents
Effective April 2, 2019 to September 19, 2019
DownloadTable of Contents
Effective April 20, 2018 to April 2, 2019
DownloadTable of Contents
Effective September 12, 2016 to April 20, 2018
DownloadTable of Contents
Effective May 3, 2016 to March 27, 2018
DownloadTable of Contents
Connects will rollover into the next month may vary from time to time and will depend on your membership program.
paid.
Effective May 5, 2015 to March 22, 2018
DownloadTable of Contents
Connects will rollover into the next month may vary from time to time and will depend on your membership program.
paid.
Proprietary Rights Infringement Reporting Procedures
Effective June 24, 2019
DownloadTable of Contents
- Identify the proprietary rights that you claim are infringed. For example, identify your trademark or quote your copyrighted material. Provide a URL or link to where the material is located, if possible.
- Identify the website, webpage, posting, profile, feedback, or other material that you claim infringes your proprietary rights. Provide information reasonably sufficient to enable us to locate it.
- Identify yourself by name. Provide your address, telephone number, and email address.
- Provide contact information for the owner or administrator of the allegedly infringing material, if possible.
- Include the following statement: “I have a good faith belief that use of the material in the manner described is not authorized by the owner of the exclusive proprietary right, its agent, or the law.”
- Include the following statement: “The information in this notice is accurate.”
- Include the following statement: “I swear, under penalty of perjury, that I am authorized to act on behalf of the owner of the exclusive proprietary right that is allegedly infringed.”
- Sign and date the Notice.
- Identify the website, webpage, posting, profile, feedback, or other material that Upwork has removed or to which Upwork has disabled access. Identify the location at which the material appeared before it was removed or access to it was disabled.
- Identify yourself by name. Provide your address, telephone number, and an email address where we can contact you.
- Include a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or San Mateo County, California, if your address is outside the United States), and that you will accept service of process from the person who provided the Notice or from an agent of that person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that each website, webpage, posting, profile, feedback or other material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- Sign and date the Counter Notice.
Effective April 18, 2018 to June 24, 2019
DownloadTable of Contents
- Identify the proprietary rights that you claim are infringed. For example, identify your trademark or quote your copyrighted material. Provide a URL or link to where the material is located, if possible.
- Identify the website, webpage, posting, profile, feedback, or other material that you claim infringes your proprietary rights. Provide information reasonably sufficient to enable us to locate it.
- Identify yourself by name. Provide your address, telephone number, and email address.
- Provide contact information for the owner or administrator of the allegedly infringing material, if possible.
- Include the following statement: “I have a good faith belief that use of the material in the manner described is not authorized by the owner of the exclusive proprietary right, its agent, or the law.”
- Include the following statement: “The information in this notice is accurate.”
- Include the following statement: “I swear, under penalty of perjury, that I am authorized to act on behalf of the owner of the exclusive proprietary right that is allegedly infringed.”
- Sign and date the Notice.
- Identify the website, webpage, posting, profile, feedback, or other material that Upwork has removed or to which Upwork has disabled access. Identify the location at which the material appeared before it was removed or access to it was disabled.
- Identify yourself by name. Provide your address, telephone number, and an email address where we can contact you.
- Include a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or San Mateo County, California, if your address is outside the United States), and that you will accept service of process from the person who provided the Notice or from an agent of that person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that each website, webpage, posting, profile, feedback or other material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- Sign and date the Counter Notice.
Effective May 5, 2015 to April 18, 2018
DownloadTable of Contents
- Identify the proprietary rights that you claim are infringed. For example, identify your trademark or quote your copyrighted material. Provide a URL or link to where the material is located, if possible.
- Identify the website, webpage, posting, profile, feedback, or other material that you claim infringes your proprietary rights. Provide information reasonably sufficient to enable us to locate it.
- Identify yourself by name. Provide your address, telephone number, and email address.
- Provide contact information for the owner or administrator of the allegedly infringing material, if possible.
- Include the following statement: “I have a good faith belief that use of the material in the manner described is not authorized by the owner of the exclusive proprietary right, its agent, or the law.”
- Include the following statement: “The information in this notice is accurate.”
- Include the following statement: “I swear, under penalty of perjury, that I am authorized to act on behalf of the owner of the exclusive proprietary right that is allegedly infringed.”
- Sign and date the Notice.
- Identify the website, webpage, posting, profile, feedback, or other material that Upwork has removed or to which Upwork has disabled access. Identify the location at which the material appeared before it was removed or access to it was disabled.
- Identify yourself by name. Provide your address, telephone number, and an email address where we can contact you.
- Include a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or San Mateo County, California, if your address is outside the United States), and that you will accept service of process from the person who provided the Notice or from an agent of that person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that each website, webpage, posting, profile, feedback or other material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- Sign and date the Counter Notice.
'Upwork Team' Software License Agreement
Effective May 5, 2015
DownloadTable of Contents
Starter Project Program Terms of Use for Clients and Freelancers
Effective June 6, 2017
DownloadTable of Contents
Team Builder Terms for Clients
Effective August 9, 2017
DownloadTable of Contents
Effective October 6, 2016 to March 22, 2018
DownloadTable of Contents
Terms of Use
Effective November 22, 2019
DownloadTable of Contents
- Seeking, offering, promoting, or endorsing and services, content, or activities that:
- are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature;
- would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website;
- would violate (a) Upwork’s Terms of Service, (b) the terms of service of another website or any similar contractual obligations, or (c) the academic policies of any educational institution;
- regard the creation, publication, distribution of “fake news”, “hoax news” or similar false content purposefully intended to mislead readers for financial or other gain;
- regard or promote in any way any escort services, prostitution, or sexual acts; or
- are harassing toward another person based on the person's inclusion in a protected class as defined by applicable law;
- Fraudulent or misleading uses or content, including:
- fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Upwork App, (ii) reporting, recording, or otherwise billing Clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- misrepresenting your experience, skills, or information, including by representing another person’s profile, or parts of another person’s profile, as your own;
- using a profile photo that misrepresents your identity or represents you as someone else;
- impersonating any person or entity, including, but not limited to, an Upwork representative, forum leader, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency;
- falsely attributing statements to any Upwork representative, forum leader, guide or host;
- Falsely stating or implying a relationship with Upwork or with another company with whom you do not have a relationship;
- allowing another person to use your account, which is misleading to other Users; or
- falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work;
- Expressing an unlawful preference in a job post or proposal or otherwise unlawfully discriminating on a protected basis;
- Posting identifying information concerning another person;
- Spamming other Users with proposals or invitations or posting the same job multiple times so that more than one version remains active at a given time;
- Making or demanding bribes or other payments without the intention of providing services in exchange for the payment;
- Requesting or demanding free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;
- Requesting a fee before allowing a User to submit a proposal;
- Attempting to or actually manipulating or misusing the feedback system, including by:
- withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- attempting to coerce another User by threatening to give negative feedback;
- expressing views unrelated to the work, such as political, religious, or social commentary, in the feedback system;
- providing anything of value to any person (including to a third-party who provides assistance in obtaining feedback) or using any service of any type in order to obtain feedback; or
- offering services for the sole purpose of obtaining positive feedback of any kind;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Upwork’s consent;
- Sharing or soliciting contact information, such as email, phone number, or Skype ID, in a profile or job post;
- Directly or indirectly, advertising or promoting another website, product, or service or soliciting other Users for other websites, products, or services, including advertising on Upwork to recruit Freelancers and/or Clients to join an Agency or another website or company;
- interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site;
- bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
- attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
- using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission;
- attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Site;
- collecting or harvesting any personally identifiable information, including Account names, from the Site;
- attempting to or imposing an unreasonable or disproportionately large load (as determined in Upwork’s sole discretion) on the Site’s infrastructure; Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any software, firmware, hardware, computer system, or network of Upwork or any third party;
- accessing or attempting to access the Site or Site Services by any means or technology other than the interface provided; or
- framing or linking to the Site or Site Services except as permitted in writing by Upwork
- Conduct or actions that could jeopardize the integrity of or circumvent the Site, Site Services or Upwork's proprietary information, including:
- attempting to or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law or Upwork; or
- accessing or using the Site or Site Services to build a similar service or application, identify or solicit Upwork Users, or publish any performance or any benchmark test or analysis relating to the Site.
Effective November 22, 2019 to November 22, 2019
DownloadTable of Contents
- Seeking, offering, promoting, or endorsing and services, content, or activities that:
- are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature;
- would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website;
- would violate (a) Upwork’s Terms of Service, (b) the terms of service of another website or any similar contractual obligations, or (c) the academic policies of any educational institution;
- regard the creation, publication, distribution of “fake news”, “hoax news” or similar false content purposefully intended to mislead readers for financial or other gain;
- regard or promote in any way any escort services, prostitution, or sexual acts; or
- are harassing toward another person based on the person's inclusion in a protected class as defined by applicable law;
- Fraudulent or misleading uses or content, including:
- fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Upwork App, (ii) reporting, recording, or otherwise billing Clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- misrepresenting your experience, skills, or information, including by representing another person’s profile, or parts of another person’s profile, as your own;
- using a profile photo that misrepresents your identity or represents you as someone else;
- impersonating any person or entity, including, but not limited to, an Upwork representative, forum leader, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency;
- falsely attributing statements to any Upwork representative, forum leader, guide or host;
- Falsely stating or implying a relationship with Upwork or with another company with whom you do not have a relationship;
- allowing another person to use your account, which is misleading to other Users; or
- falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work;
- Expressing an unlawful preference in a job post or proposal or otherwise unlawfully discriminating on a protected basis;
- Posting identifying information concerning another person;
- Spamming other Users with proposals or invitations or posting the same job multiple times so that more than one version remains active at a given time;
- Making or demanding bribes or other payments without the intention of providing services in exchange for the payment;
- Requesting or demanding free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;
- Requesting a fee before allowing a User to submit a proposal;
- Attempting to or actually manipulating or misusing the feedback system, including by:
- withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- attempting to coerce another User by threatening to give negative feedback;
- expressing views unrelated to the work, such as political, religious, or social commentary, in the feedback system;
- providing anything of value to any person (including to a third-party who provides assistance in obtaining feedback) or using any service of any type in order to obtain feedback; or
- offering services for the sole purpose of obtaining positive feedback of any kind;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Upwork’s consent;
- Sharing or soliciting contact information, such as email, phone number, or Skype ID, in a profile or job post;
- Directly or indirectly, advertising or promoting another website, product, or service or soliciting other Users for other websites, products, or services, including advertising on Upwork to recruit Freelancers and/or Clients to join an Agency or another website or company;
- Conduct or actions that could jeopardize the integrity of or circumvent the Site, Site Services or Upwork's proprietary information, including:
- interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site;
- bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
- attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
- using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission;
- attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Site;
- collecting or harvesting any personally identifiable information, including Account names, from the Site;
- attempting to or imposing an unreasonable or disproportionately large load (as determined in Upwork’s sole discretion) on the Site’s infrastructure; Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any software, firmware, hardware, computer system, or network of Upwork or any third party;
- accessing or attempting to access the Site or Site Services by any means or technology other than the interface provided; or
- framing or linking to the Site or Site Services except as permitted in writing by Upwork
- Attempting to or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law or Upwork; or
- Accessing or using the Site or Site Services to build a similar service or application, identify or solicit Upwork Users, or publish any performance or any benchmark test or analysis relating to the Site.
Effective November 22, 2019 to November 22, 2019
DownloadTable of Contents
- Seeking, offering, promoting, or endorsing and services, content, or activities that:
- are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature;
- would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website;
- would violate (a) Upwork’s Terms of Service, (b) the terms of service of another website or any similar contractual obligations, or (c) the academic policies of any educational institution;
- regard the creation, publication, distribution of “fake news”, “hoax news” or similar false content purposefully intended to mislead readers for financial or other gain;
- regard or promote in any way any escort services, prostitution, or sexual acts; or
- are harassing toward another person based on the person's inclusion in a protected class as defined by applicable law;
- Fraudulent or misleading uses or content, including:
- fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Upwork App, (ii) reporting, recording, or otherwise billing Clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- misrepresenting your experience, skills, or information, including by representing another person’s profile, or parts of another person’s profile, as your own;
- using a profile photo that misrepresents your identity or represents you as someone else;
- impersonating any person or entity, including, but not limited to, an Upwork representative, forum leader, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency;
- falsely attributing statements to any Upwork representative, forum leader, guide or host;
- Falsely stating or implying a relationship with Upwork or with another company with whom you do not have a relationship;
- allowing another person to use your account, which is misleading to other Users; or
- falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work;
- Expressing an unlawful preference in a job post or proposal or otherwise unlawfully discriminating on a protected basis;
- Posting identifying information concerning another person;
- Spamming other Users with proposals or invitations or posting the same job multiple times so that more than one version remains active at a given time;
- Making or demanding bribes or other payments without the intention of providing services in exchange for the payment;
- Requesting or demanding free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;
- Requesting a fee before allowing a User to submit a proposal;
- Attempting to or actually manipulating or misusing the feedback system, including by:
- withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- attempting to coerce another User by threatening to give negative feedback;
- expressing views unrelated to the work, such as political, religious, or social commentary, in the feedback system;
- providing anything of value to any person (including to a third-party who provides assistance in obtaining feedback) or using any service of any type in order to obtain feedback; or
- offering services for the sole purpose of obtaining positive feedback of any kind;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Upwork’s consent;
- Sharing or soliciting contact information, such as email, phone number, or Skype ID, in a profile or job post;
- Directly or indirectly, advertising or promoting another website, product, or service or soliciting other Users for other websites, products, or services, including advertising on Upwork to recruit Freelancers and/or Clients to join an Agency or another website or company;
- Conduct or actions that could jeopardize the integrity of or circumvent the Site, Site Services or Upwork's proprietary information, including
- Interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site;
- Bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
- Attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
- Using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission;
- Attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Site;
- Collecting or harvesting any personally identifiable information, including Account names, from the Site;
- Attempting to or imposing an unreasonable or disproportionately large load (as determined in Upwork’s sole discretion) on the Site’s infrastructure; Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any software, firmware, hardware, computer system, or network of Upwork or any third party;
- Accessing or attempting to access the Site or Site Services by any means or technology other than the interface provided; or
- Framing or linking to the Site or Site Services except as permitted in writing by Upwork
- Attempting to or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law or Upwork; or
- Accessing or using the Site or Site Services to build a similar service or application, identify or solicit Upwork Users, or publish any performance or any benchmark test or analysis relating to the Site.
Effective May 21, 2018 to November 22, 2019
DownloadTable of Contents
- Seeking, offering, promoting, or endorsing and services, content, or activities that:
- are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature;
- would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website;
- would violate (a) Upwork’s Terms of Service, (b) the terms of service of another website or any similar contractual obligations, or (c) the academic policies of any educational institution;
- regard the creation, publication, distribution of “fake news”, “hoax news” or similar false content purposefully intended to mislead readers for financial or other gain;
- regard or promote in any way any escort services, prostitution, or sexual acts; or
- are harassing toward another person based on the person's inclusion in a protected class as defined by applicable law;
- Fraudulent or misleading uses or content, including:
- Fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Upwork App, (ii) reporting, recording, or otherwise billing Clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- Misrepresenting your experience, skills, or information, including by representing another person’s profile, or parts of another person’s profile, as your own;
- Using a profile photo that misrepresents your identity or represents you as someone else;
- Impersonating any person or entity, including, but not limited to, an Upwork representative, forum leader, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- Falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency;
- Falsely attributing statements to any Upwork representative, forum leader, guide or host;
- Falsely stating or implying a relationship with Upwork or with another company with whom you do not have a relationship;
- Allowing another person to use your account, which is misleading to other Users; or
- Falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work;
- Expressing an unlawful preference in a job post or proposal or otherwise unlawfully discriminating on a protected basis;
- Posting identifying information concerning another person;
- Spamming other Users with proposals or invitations or posting the same job multiple times so that more than one version remains active at a given time;
- Making or demanding bribes or other payments without the intention of providing services in exchange for the payment;
- Requesting or demanding free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;
- Requesting a fee before allowing a User to submit a proposal;
- Attempting to or actually manipulating or misusing the feedback system, including by:
- withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- attempting to coerce another User by threatening to give negative feedback;
- expressing views unrelated to the work, such as political, religious, or social commentary, in the feedback system; or
- offering services for the sole purpose of obtaining positive feedback of any kind;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Upwork’s consent;
- Sharing or soliciting contact information, such as email, phone number, or Skype ID, in a profile or job post;
- Directly or indirectly, advertising or promoting another website, product, or service or soliciting other Users for other websites, products, or services, including advertising on Upwork to recruit Freelancers and/or Clients to join an Agency or another website or company;
- Conduct or actions that could jeopardize the integrity of or circumvent the Site, Site Services or Upwork's proprietary information, including
- Interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site;
- Bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
- Attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
- Using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission;
- Attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Site;
- Collecting or harvesting any personally identifiable information, including Account names, from the Site;
- Attempting to or imposing an unreasonable or disproportionately large load (as determined in Upwork’s sole discretion) on the Site’s infrastructure; Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any software, firmware, hardware, computer system, or network of Upwork or any third party;
- Accessing or attempting to access the Site or Site Services by any means or technology other than the interface provided; or
- Framing or linking to the Site or Site Services except as permitted in writing by Upwork
- Attempting to or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law or Upwork; or
- Accessing or using the Site or Site Services to build a similar service or application, identify or solicit Upwork Users, or publish any performance or any benchmark test or analysis relating to the Site.
Effective May 20, 2018 to May 21, 2018
DownloadTable of Contents
- Seeking, offering, promoting, or endorsing and services, content, or activities that:
- are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature;
- would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website;
- would violate (a) Upwork’s Terms of Service, (b) the terms of service of another website or any similar contractual obligations, or (c) the academic policies of any educational institution;
- regard the creation, publication, distribution of “fake news”, “hoax news” or similar false content purposefully intended to mislead readers for financial or other gain;
- regard or promote in any way any escort services, prostitution, or sexual acts; or
- are harassing toward another person based on the person's inclusion in a protected class as defined by applicable law;
- Fraudulent or misleading uses or content, including:
- Fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Upwork App, (ii) reporting, recording, or otherwise billing Clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- Misrepresenting your experience, skills, or information, including by representing another person’s profile, or parts of another person’s profile, as your own;
- Using a profile photo that misrepresents your identity or represents you as someone else;
- Impersonating any person or entity, including, but not limited to, an Upwork representative, forum leader, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- Falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency;
- Falsely attributing statements to any Upwork representative, forum leader, guide or host;
- Falsely stating or implying a relationship with Upwork or with another company with whom you do not have a relationship;
- Allowing another person to use your account, which is misleading to other Users; or
- Falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work;
- Expressing an unlawful preference in a job post or proposal or otherwise unlawfully discriminating on a protected basis;
- Posting identifying information concerning another person;
- Spamming other Users with proposals or invitations or posting the same job multiple times so that more than one version remains active at a given time;
- Making or demanding bribes or other payments without the intention of providing services in exchange for the payment;
- Requesting or demanding free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;
- Requesting a fee before allowing a User to submit a proposal;
- Attempting to or actually manipulating or misusing the feedback system, including by:
- withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- attempting to coerce another User by threatening to give negative feedback;
- expressing views unrelated to the work, such as political, religious, or social commentary, in the feedback system; or
- offering services for the sole purpose of obtaining positive feedback of any kind;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Upwork’s consent;
- Sharing or soliciting contact information, such as email, phone number, or Skype ID, in a profile or job post;
- Directly or indirectly, advertising or promoting another website, product, or service or soliciting other Users for other websites, products, or services, including advertising on Upwork to recruit Freelancers and/or Clients to join an Agency or another website or company;
- Conduct or actions that could jeopardize the integrity of or circumvent the Site, Site Services or Upwork's proprietary information, including
- Interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site;
- Bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein;
- Attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site;
- Using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission;
- Attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Site;
- Collecting or harvesting any personally identifiable information, including Account names, from the Site;
- Attempting to or imposing an unreasonable or disproportionately large load (as determined in Upwork’s sole discretion) on the Site’s infrastructure; Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any software, firmware, hardware, computer system, or network of Upwork or any third party;
- Accessing or attempting to access the Site or Site Services by any means or technology other than the interface provided; or
- Framing or linking to the Site or Site Services except as permitted in writing by Upwork
- Attempting to or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law or Upwork; or
- Accessing or using the Site or Site Services to build a similar service or application, identify or solicit Upwork Users, or publish any performance or any benchmark test or analysis relating to the Site.
Effective April 20, 2018 to May 20, 2018
DownloadTable of Contents
- Seeking, offering, or endorsing illegal, obscene, or pornographic services or activities, including services (i) that would violate the intellectual property rights, including copyrights, of another person, entity, service, product, or website or (ii) that would involve the creation, review, or editing of pornographic, erotic, obscene, or sexually explicit material;
- Posting content that is offensive, defamatory, profane, vulgar, obscene, threatening, discriminatory, illegal, pornographic, obscene or sexually explicit in nature;
- Seeking, offering, or endorsing any services that would violate Upwork’s Terms of Service or the terms of service of another website or any other contractual obligations;
- Seeking, offering, or endorsing any services that violate the academic policies of any educational institution;
- Fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Upwork Team App, (ii) reporting, recording, or otherwise billing clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- Expressing a preference in a job post or proposal or otherwise unlawfully discriminating on the basis of race, religion, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military/veteran status or any basis protected by applicable law;
- Posting content that is harassing towards another person or violates the rights of a third party;
- Posting identifying information concerning another person;
- Making or demanding bribes;
- Making or demanding payments without the intention of providing or receiving services in exchange for the payment;
- Spamming other Users;
- Using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission or collecting or harvesting any personally identifiable information, including Account names, from the Site; and
- Engaging in any conduct that is reasonably likely to or that is intended to harm the Site, including (i) imposing an unreasonable or disproportionately large load (in our sole discretion) on the Site’s infrastructure; (ii) interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site; (iii) bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; or (iv) attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site.
- Offering services for the sole purpose of obtaining positive feedback of any kind;
- Requesting, demanding, or receiving free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;
- Requesting a fee before allowing another User to submit a proposal;
- Posting the same job multiple times so that more than one version remains active at a given time;
- Withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- Attempting to falsify, manipulate, or coerce another User by threatening to give negative feedback;
- Misusing the feedback feature to express views unrelated to the work, such as political, religious, or social commentary;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Upwork’s consent;
- Sharing or soliciting contact information such as email, phone number, or Skype ID in a profile or job post;
- Soliciting or processing payment outside of Upwork in violation of the Terms of Service;
- Advertising products or services that are outside or beyond the scope of the Upwork marketplace; and
- Advertising on Upwork to recruit Freelancers to join an Agency or another website or company.
- Misrepresenting a Freelancer’s experience, skills, or information;
- Impersonating any person or entity, including, but not limited to, an Upwork representative, forum leader, guide or host, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- Falsely attributing statements to any Upwork representative, forum leader, guide or host;
- Allowing another person to use your account, which is misleading to other Users;
- Falsely stating or implying a relationship with Upwork or with another company with whom you do not have a relationship;
- Falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency; and
- Falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work.
Effective August 8, 2016 to April 20, 2018
DownloadTable of Contents
- Seeking, offering, or endorsing illegal, obscene, or pornographic services or activities, including services (i) that would violate the intellectual property rights, including copyrights, of another person, entity, service, product, or website or (ii) that would involve the creation, review, or editing of pornographic, erotic, obscene, or sexually explicit material;
- Posting content that is offensive, defamatory, profane, vulgar, obscene, threatening, discriminatory, illegal, pornographic, obscene or sexually explicit in nature;
- Seeking, offering, or endorsing any services that would violate Upwork’s Terms of Service or the terms of service of another website or any other contractual obligations;
- Seeking, offering, or endorsing any services that violate the academic policies of any educational institution;
- Fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Upwork Team App, (ii) reporting, recording, or otherwise billing clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- Expressing a preference in a job post or proposal or otherwise unlawfully discriminating on the basis of race, religion, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military/veteran status or any basis protected by applicable law;
- Posting content that is harassing towards another person or violates the rights of a third party;
- Posting identifying information concerning another person;
- Making or demanding bribes;
- Making or demanding payments without the intention of providing or receiving services in exchange for the payment;
- Spamming other Users;
- Using any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission or collecting or harvesting any personally identifiable information, including Account names, from the Site; and
- Engaging in any conduct that is reasonably likely to or that is intended to harm the Site, including (i) imposing an unreasonable or disproportionately large load (in our sole discretion) on the Site’s infrastructure; (ii) interfering or attempting to interfere with the proper operation of the Site or Site Services or any activities conducted on the Site; (iii) bypassing any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; or (iv) attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site.
- Offering services for the sole purpose of obtaining positive feedback of any kind;
- Requesting, demanding, or receiving free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;
- Requesting a fee before allowing another User to submit a proposal;
- Posting the same job multiple times so that more than one version remains active at a given time;
- Withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- Attempting to falsify, manipulate, or coerce another User by threatening to give negative feedback;
- Misusing the feedback feature to express views unrelated to the work, such as political, religious, or social commentary;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Upwork’s consent;
- Sharing or soliciting contact information such as email, phone number, or Skype ID in a profile or job post;
- Soliciting or processing payment outside of Upwork in violation of the Terms of Service;
- Advertising products or services that are outside or beyond the scope of the Upwork marketplace; and
- Advertising on Upwork to recruit Freelancers to join an Agency or another website or company.
- Misrepresenting a Freelancer’s experience, skills, or information;
- Impersonating any person or entity, including, but not limited to, an Upwork representative, forum leader, guide or host, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- Falsely attributing statements to any Upwork representative, forum leader, guide or host;
- Allowing another person to use your account, which is misleading to other Users;
- Falsely stating or implying a relationship with Upwork or with another company with whom you do not have a relationship;
- Falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency; and
- Falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work.
Effective May 3, 2016 to March 22, 2018
DownloadTable of Contents
- Seeking, offering, or endorsing illegal, obscene, or pornographic services or activities, including services (i) that would violate the intellectual property rights, including copyrights, of another person, entity, service, product, or website or (ii) that would involve the creation, review, or editing of pornographic, erotic, obscene, or sexually explicit material;
- Posting content that is offensive, defamatory, profane, vulgar, obscene, threatening, discriminatory, illegal, pornographic, obscene or sexually explicit in nature;
- Seeking, offering, or endorsing any services that would violate Upwork’s Terms of Service or the terms of service of another website or any other contractual obligations;
- Seeking, offering, or endorsing any services that violate the academic policies of any educational institution;
- Fraudulently billing or attempting to fraudulently bill any Client, including by (i) falsifying or manipulating or attempting to falsify or manipulate the hours, keystrokes, or mouse clicks recorded in the Upwork Team App, (ii) reporting, recording, or otherwise billing clients for time that was not actually worked, or (iii) reporting, recording, or otherwise billing hours worked by another person as hours worked by you in a way that is misleading or false;
- Expressing a preference in a job post or proposal or otherwise unlawfully discriminating on the basis of race, religion, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, military/veteran status or any basis protected by applicable law;
- Posting content that is harassing towards another person or violates the rights of a third party;
- Posting identifying information concerning another person;
- Making or demanding bribes;
- Making or demanding payments without the intention of providing or receiving services in exchange for the payment; and
- Spamming other Users.
- Offering services for the sole purpose of obtaining positive feedback of any kind;
- Requesting, demanding, or receiving free services, including requesting Freelancers to submit work as part of the proposal process for very little or no money or posting contests in which Freelancers submit work with no or very little pay, and only the winning submission is paid the full amount;
- Requesting a fee before allowing another User to submit a proposal;
- Posting the same job multiple times so that more than one version remains active at a given time;
- Withholding payment or Work Product or engaging in any other conduct for the purpose of obtaining positive feedback from another User;
- Attempting to falsify, manipulate, or coerce another User by threatening to give negative feedback;
- Misusing the feedback feature to express views unrelated to the work, such as political, religious, or social commentary;
- Duplicating or sharing accounts;
- Selling, trading, or giving an account to another person without Upwork’s consent;
- Sharing or soliciting contact information such as email, phone number, or Skype ID in a profile or job post;
- Soliciting or processing payment outside of Upwork in violation of the Terms of Service;
- Advertising products or services that are outside or beyond the scope of the Upwork marketplace; and
- Advertising on Upwork to recruit Freelancers to join an Agency or another website or company.
- Misrepresenting a Freelancer’s experience, skills, or information;
- Impersonating any person or entity, including, but not limited to, an Upwork representative, forum leader, guide or host, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
- Falsely attributing statements to any Upwork representative, forum leader, guide or host;
- Allowing another person to use your account, which is misleading to other Users;
- Falsely stating or implying a relationship with Upwork or with another company with whom you do not have a relationship;
- Falsely stating or implying a relationship with another User, including an Agency continuing to use a Freelancer’s profile or information after the Freelancer no longer works with the Agency; and
- Falsely stating that one Freelancer will perform the work on a job when another will in fact perform the work, including submitting a proposal on behalf of a Freelancer that is unable, unwilling, or unavailable to do the work.
Upwork Escrow Inc.
Effective September 1, 2016
DownloadTable of Contents
Upwork Payroll Agreement
Effective November 1, 2018
DownloadTable of Contents
Effective September 1, 2016 to November 1, 2018
DownloadTable of Contents
Effective April 1, 2016 to March 22, 2018
DownloadTable of Contents
Effective March 16, 2016 to March 22, 2018
DownloadTable of Contents
Effective September 6, 2015 to March 22, 2018
DownloadTable of Contents
WEWORK CLIENT ADDENDUM FOR UPWORK ENTERPRISE SERVICES
Effective August 1, 2017
DownloadTable of Contents
Mark Use Guidelines
Effective April 20, 2018
DownloadTable of Contents
- Your use should never mislead anyone to believe Upwork sponsorship, affiliation, or endorsement of your company, products, or services exists when it does not.
- When referring to Upwork, use the Upwork name in a plain text font and format only.
- Upwork always appears as "Upwork," never as "UpWork", “UPWork”, "upwork", or "UPwork".
- On any letterhead, business card, or signature block;
- As part of your business name or a domain name;
- As part of a user ID, including on Upwork or social media;
- In association with any third-party trademark in a manner that might create potential confusion as to the ownership of the Upwork Mark;
- In any manner that suggests or could lead someone to believe you are acting on behalf of or in association with Upwork or that Upwork has endorsed or sponsored your product or services; or
- Outside of your relationship with us, except as permitted by Upwork in writing.
- That has been reproduced from an unauthorized artwork;
- That has been modified, including color specifications, position and relative size of the letterings;
- That has been modified to use negative or reverse “drop-out” reproduction;
- Tightly confined in a band or bar; or
- With other seals, logos, or other marks of other entities.
Optional Service Contract Terms
Effective July 23, 2019
DownloadTable of Contents
Effective April 20, 2018 to July 23, 2019
DownloadTable of Contents
Data Subject Access Form
Global Data Processing Agreement
Independent Contractor Agreement
Effective December 17, 2019
DownloadTable of Contents

Effective October 31, 2019 to December 17, 2019
DownloadTable of Contents

Effective July 18, 2019 to October 31, 2019
DownloadTable of Contents

Effective July 9, 2018 to July 18, 2019
DownloadTable of Contents

Master Subscription Agreement (Enterprise Standard)
Effective August 26, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- "Platform Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “Platform Content” excludes Freelancer Work Product. For avoidance of doubt, “Platform Content” does not include Subscriber’s Confidential Information.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.“UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating Platform Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing records and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post Platform Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post Platform Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post Platform Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s Platform Content, it is permitted to monitor Platform Content and reserves the right to delete any Platform Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment terms in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination for Cause. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. If Subscriber's subscription to the Services or this Agreement ends early for any reason other than Subscriber's termination pursuant to Section 4.b (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- Platform Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s Platform Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Platform Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail to legalnotices@upwork.com, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective August 15, 2019 to August 26, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- "Platform Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “Platform Content” excludes Freelancer Work Product. For avoidance of doubt, “Platform Content” does not include Subscriber’s Confidential Information.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.“UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating Platform Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing records and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post Platform Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post Platform Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post Platform Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s Platform Content, it is permitted to monitor Platform Content and reserves the right to delete any Platform Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment terms in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination for Cause. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. If Subscriber's subscription to the Services or this Agreement ends early for any reason other than Subscriber's termination pursuant to Section 4.b (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- Platform Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s Platform Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Platform Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective July 15, 2019 to August 15, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- "Platform Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “Platform Content” excludes Freelancer Work Product. For avoidance of doubt, “Platform Content” does not include Subscriber’s Confidential Information.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.“UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating Platform Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing records and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post Platform Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post Platform Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post Platform Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s Platform Content, it is permitted to monitor Platform Content and reserves the right to delete any Platform Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment terms in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination for Convenience. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. If Subscriber's subscription to the Services or this Agreement ends early for any reason other than Subscriber's termination pursuant to Section 4.b (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- Platform Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s Platform Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Platform Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective July 12, 2019 to July 15, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing records and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination for Convenience. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. If Subscriber's subscription to the Services or this Agreement ends early for any reason other than Subscriber's termination pursuant to Section 4.b (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective July 11, 2019 to July 12, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing records and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under Section 4.b, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective July 11, 2019 to July 11, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.“Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries and, if applicable, their Work Diary, and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 20, 2019 to July 11, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.“Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 20, 2019 to June 20, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.“Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 20, 2019 to June 20, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.“Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 20, 2019 to June 20, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by program management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by program management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork during the Exclusivity Period, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 5, 2019 to June 20, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- “Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- "Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Service Contract” means the contractual provisions that govern each Freelancer Engagement and the provisioning of Freelancer Services and Freelancer Work Product, including the Engagement terms awarded and accepted on the Platform, applicable project descriptions and Freelancer rates, hours, and milestones, provided, however, that in each case, such terms will not, and will not purport to, expand Upwork’s obligations or restrict Upwork’s rights under this Agreement.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement, including without limitation worker classification. Subscriber agrees to enroll any Freelancer that should be classified as an employee in Upwork Payroll Services, and, unless otherwise instructed by Subscriber, any Service Contracts opened in Subscriber’s Upwork Enterprise account by Program Management personnel will be established as independent contractor relationships.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (a) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (b) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Freelancer Relationship. If and after the Freelancer has agreed to provide Freelancer Services to Subscriber and has executed a Service Contract and any other necessary agreements, Subscriber and Freelancer will work directly together. Upwork will not supervise, control, or otherwise be responsible for the performance of the Freelancer Services by Freelancer. If there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable to either Subscriber or Freelancer with respect to such dispute.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber shall enter into an agreement with each Freelancer for each Engagement that includes a provision requiring that any and all disputes between Subscriber and Freelancer will be subject to individual arbitration and include a waiver of all class and collective actions. In addition, the arbitration provision must expressly identify Upwork, including its affiliates, officers, and directors, as a third-party beneficiary of such arbitration provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork during the Exclusivity Period, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Service Contract. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork is not a party to any Service Contract and will not have any liability or obligations under or related to Service Contracts for any acts or omissions by Freelancers; (iv) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (v) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (vi) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a Service Contract; (vii) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (viii) Upwork does not provide the premises at which the Freelancer will perform the work; and (ix) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if Subscriber requests Upwork Payroll Services, Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations; or (iii) the misuse or unauthorized use of the Platform.
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective August 16, 2018 to June 5, 2019
DownloadTable of Contents
Effective August 15, 2018 to August 16, 2018
DownloadTable of Contents
- When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
Jumpstarter Projects Program Terms of Use
Effective December 10, 2018
DownloadTable of Contents
Effective October 14, 2018 to December 10, 2018
DownloadTable of Contents
Effective October 14, 2018 to October 14, 2018
DownloadTable of Contents
Effective October 14, 2018 to October 14, 2018
DownloadTable of Contents
Master Subscription Agreement (Compliance)
Effective August 26, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “Platform Content” excludes Freelancer Work Product. For avoidance of doubt, “Platform Content” does not include Subscriber’s Confidential Information.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generate interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating Platform Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries, and, if applicable, their Work Diary, and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons or confidential financial information through the Platform; (v) submit or post Platform Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post Platform Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post Platform Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s Platform Content, it is permitted to monitor Platform Content and reserves the right to delete any Platform Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment terms in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer that Subscriber found on the Platform through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination for Cause. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. If Subscriber's subscription to the Services or this Agreement ends early for any reason other than Subscriber's termination pursuant to Section 4.b (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- Platform Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s Platform Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Platform Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.d (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail to legalnotices@upwork.com, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective August 15, 2019 to August 26, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “Platform Content” excludes Freelancer Work Product. For avoidance of doubt, “Platform Content” does not include Subscriber’s Confidential Information.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating Platform Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries, and, if applicable, their Work Diary, and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons or confidential financial information through the Platform; (v) submit or post Platform Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post Platform Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post Platform Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s Platform Content, it is permitted to monitor Platform Content and reserves the right to delete any Platform Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment terms in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer that Subscriber found on the Platform through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination for Cause. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. If Subscriber's subscription to the Services or this Agreement ends early for any reason other than Subscriber's termination pursuant to Section 4.b (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- Platform Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s Platform Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Platform Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.d (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective July 15, 2019 to August 15, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “Platform Content” excludes Freelancer Work Product. For avoidance of doubt, “Platform Content” does not include Subscriber’s Confidential Information.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating Platform Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries, and, if applicable, their Work Diary, and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons or confidential financial information through the Platform; (v) submit or post Platform Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post Platform Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post Platform Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s Platform Content, it is permitted to monitor Platform Content and reserves the right to delete any Platform Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment terms in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer that Subscriber found on the Platform through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination for Convenience. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. If Subscriber's subscription to the Services or this Agreement ends early for any reason other than Subscriber's termination pursuant to Section 4.b (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- Platform Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s Platform Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Platform Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.d (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective July 12, 2019 to July 15, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries, and, if applicable, their Work Diary, and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination for Convenience. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. If Subscriber's subscription to the Services or this Agreement ends early for any reason other than Subscriber's termination pursuant to Section 4.b (Termination for Cause), then, in addition to other amounts Subscriber may owe Upwork, Subscriber will be responsible for paying any unpaid Subscription fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.d (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective July 11, 2019 to July 12, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.a.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.d (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries, and, if applicable, their Work Diary, and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under Section 4.b, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The Sections and Subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.d (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective July 11, 2019 to July 11, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries, and, if applicable, their Work Diary, and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.4 (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 20, 2019 to July 11, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.4 (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 20, 2019 to June 20, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.4 (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 20, 2019 to June 20, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork within two years after the date that such Platform Freelancer is first engaged by Subscriber, then Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.4 (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 20, 2019 to June 20, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (ii) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork during the Exclusivity Period, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.4 (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 20, 2019 to June 20, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (i) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, (a) Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services and (b) in the event that this Agreement terminates or expires with respect to the Subscriber, the terms of this Agreement shall still remain in effect for the Affiliate until the sooner occurrence of either the expiration of the Affiliate Order Form or termination by the Affiliate. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (1) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (2) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork during the Exclusivity Period, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.4 (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective June 5, 2019 to June 20, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “Authorized Users” means those representatives of Subscriber that are permitted to access and use the Platform on Subscriber’s behalf.
- “Authorized Recipients” means employees and representatives of the party receiving Confidential Information that have a bona fide need to know such Confidential Information.
- “BYO Freelancer” means a Freelancer that Subscriber brings to Upwork’s Platform that has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “BYO Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a BYO Freelancer.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies. The term “Claims” excludes Excluded Claims.
- “Confidential Information” means any information or materials (regardless of form or manner of disclosure) that are disclosed by or on behalf of one party to the other party that (i) are marked, flagged, or communicated as being “confidential” or “proprietary” either at the time of such disclosure; or (ii) the disclosing party orally discloses to the receiving party and identifies as being confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days after such disclosure. The term “Confidential Information” does not include any information or materials that: (a) are or become generally known or available to the public through no breach of this Agreement or other wrongful act or omission by the receiving party; (b) were already known by the receiving party; (c) are acquired by the receiving party without restriction from a third party who has the right to make such disclosure; or (d) are independently developed by or on behalf of the receiving party without reference to any Confidential Information.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates, or Employment Provider for any background checks, drug tests or other compliance or screening measures required by Subscriber or as required by law.
- “Effective Date” means the later of either the “Contract Start Date” listed on the first Order Form signed by the parties or date that the first Order Form is fully executed by the parties.
- “Employment Provider” means Upwork’s third-party employment provider(s) that are used to employ Freelancers that are classified as employees in conjunction with Upwork Payroll Services.
- "Employment-Related Costs” means any additional employment-related costs, if applicable, for items Subscriber requires or that are required by law, including overtime, premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Engagement” means an engagement for Freelancer Services and Freelancer Work Product that a Freelancer provides to a Subscriber.
- “Enterprise Billing Services” means Upwork’s Service of issuing Freelancer Payments on Subscriber’s behalf as due for each Engagement and then billing Subscriber in arrears on a monthly basis for all such payments made on Subscriber’s behalf as further described in Section 3.1.
- “Excluded Claims” means claims arising, in whole or in part, from (i) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s Engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (i) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (iii) (a) Upwork’s misclassification of a Freelancer; (b) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (c) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(iii)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period of time that starts on the date that the Platform Freelancer is first engaged by Subscriber and which ends on the two-year anniversary of that date.
- “Freelancer” means a user that advertises and provides its Freelancer Services on the Platform. Freelancers collectively refers to all BYO Freelancers and Platform Freelancers.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including expenses or bonuses authorized by Subscriber or required by law and reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” collectively means Freelancer Payments, Custom Compliance Costs and Employment-Related Costs.
- “Freelancer Services” means the services that a Freelancer has agreed to perform for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product, and deliverables created by a Freelancer for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group Inc. and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means the website located at www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “Program Management Services” means Services provided by Upwork to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent, and skills needed to complete Subscriber’s project and help Subscriber draft project posts.
- “Services” means Upwork’s products and services that are provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation or provision of such products and services, including provisioning access to the Platform. The “Services” are separate from and do not include Freelancer Services or Freelancer Work Product.
- “Service Fee” means the Subscriber fee that is payable to Upwork that applies to Engagements involving a Platform Freelancer.
- “Talent Sourcing Services” means those Services that Subscriber may request from Upwork from time to time related to talent sourcing, which include helping generating interest in Subscriber’s job posts from Freelancers and the provision of a short list of Freelancers advertising the skills that Subscriber seeks. Any use by Subscriber of Talent Sourcing services will not alter or remove any Subscriber responsibilities under the Agreement.
- “Taxes” means all taxes, levies, imposts, duties, and similar governmental assessments arising in connection with this Agreement, including but not limited to sales, use, VAT, GST, income withholding, property, excise, service, transaction, privilege, occupation, and gross receipts, in addition to taxes incurred on transactions between Upwork and its affiliates or third-party subcontractors. The term “Taxes” does not include taxes levied on Upwork’s own income and property.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “User Content” means any content, text, images, video, audio, and other materials or information that Subscriber submits, posts, displays, or otherwise makes available on or through the Platform, including material submitted to Upwork or its representatives outside of the Platform for the purposes of being submitted, posted, displayed, or otherwise made available on the Platform. The term “User Content” excludes Freelancer Work Product. For avoidance of doubt, “User Content” does not include Subscriber’s Confidential Information.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Fee” means the fee charged by Upwork to Subscriber for the provisioning of Upwork Payroll Services in connection with an Engagement.
- “Upwork Payroll Services” means the Service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking, and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and the Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Platform available to Subscriber and (ii) hereby grants to Subscriber and its Authorized Users a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) find and engage Freelancers through the Platform, (b) receive, review, and approve Freelancer Services and Freelancer Work Product, and (c) approve Freelancer billing records for payment by Upwork or the Employment Provider on behalf of Subscriber. Subscriber is responsible for its Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms of this Agreement. During the Term, Upwork may modify the features and functionality of the Platform. Subscriber hereby acknowledges that its access to and use of the Platform will be via the internet only. Subscriber shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting Authorized User passwords and other login information. Subscriber shall promptly notify Upwork if it becomes aware of any unauthorized use of the Platform and will reasonably cooperate with Upwork to remediate such breaches.
- Compliance Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Engagement based on the information that Subscriber and Freelancer provide about the applicable Engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. Subscriber will provide Upwork with all information requested that is related to the Engagement and the classification of a Freelancer in a timely, accurate, and complete manner and notify Upwork immediately if any such information changes.
- Freelancer Engagement. Upwork will, based on its worker classification, either: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee through Upwork Payroll Services. Upwork may delegate the Engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in their sole discretion. Upwork will cause each Freelancer classified and engaged as an independent contractor to execute an Independent Contractor Agreement. Upwork (through Employment Provider) will cause each Freelancer classified and hired as an employee to execute an employment agreement containing confidentiality and intellectual property assignment provisions that are consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the Engagement and payment of Freelancers; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. If Subscriber requests Program Management Services from Upwork, then Subscriber authorizes Upwork personnel to access Subscriber’s Upwork enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, creating User Content, preparing and offering contracts on the Platform to Freelancers, releasing payments, and closing such contracts upon completion of the work. All actions performed by Program Management personnel in Subscriber’s Upwork enterprise account will be considered to be actions by and at the direction of Subscriber. Any use by Subscriber of Program Management Services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement.
- Affiliates. Subscriber’s Affiliates are permitted to contract for Services and to use the Platform pursuant to the terms of this Master Subscription Agreement by either (i) directly entering into an Order Form with Upwork, which will be governed under the terms of this Master Subscription Agreement (an “Affiliate Order Form”) or (ii) if authorized by Subscriber, using the Platform as an Authorized User under Subscriber’s account. By entering into an Affiliate Order Form directly with Upwork, Subscriber’s Affiliate agrees to be bound by the terms of this Master Subscription Agreement as if a direct party hereto and all applicable terms that apply to “Subscriber” in this Master Subscription Agreement will be deemed to apply to the Affiliate for the purposes of its use of the Platform and Upwork’s Services. By authorizing an Affiliate to use Subscriber’s account as an Authorized User, (a) Subscriber agrees to be directly responsible for all costs and fees incurred by such Affiliate, which will be directly billed to Subscriber and (b) Subscriber will be responsible for its Affiliates’ compliance with this Master Subscription Agreement. If an Affiliate of Subscriber that establishes a relationship with Upwork under this provision ceases to be an Affiliate of Subscriber, then the relevant Affiliate Order Form will terminate with respect to such Services in accordance with Section 4.4 (Effect of Termination and Survival).
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (i) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (ii) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (i) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (ii) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any weekly time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For Engagements where Freelancer Payments are tied to the completion of milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 calendar days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 calendar day period, then (i) the Freelancer Services or Freelancer Work Product reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (ii) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- On-Site Engagements. Subscriber is responsible for the safety and protection of Freelancers while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws, and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) transmit information that identifies or relates to natural persons (“Personal Data”) or confidential financial information through the Platform; (v) submit or post User Content or other material to the Platform that is fraudulent, discriminatory, abusive, spamming, infringing, obscene, threatening, defamatory, unlawful, tortious, or otherwise objectionable to a reasonable person; (vii) submit or post User Content or other material to the Platform that violates applicable law or the privacy rights, publicity rights, or intellectual property rights of any third party (vi) submit or post User Content or other material to the Platform that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (viii) attempt to gain unauthorized access to the Services or its systems or networks; or (ix) use the Services in violation of applicable law. Subscriber will not encourage any third party to violate these restrictions. Although Upwork is not responsible for Subscriber’s User Content, it is permitted to monitor User Content and reserves the right to delete any User Content (in whole or in part) that Upwork determines in its reasonable discretion violates this provision or any other part of this Agreement or which is inappropriate.
- Upgrading/Downgrading. In the event that Subscriber decides to Upgrade or Downgrade (as those terms are defined below), then, in addition to such other terms as the parties may need to agree to in connection with such Upgrade or Downgrade, Subscriber authorizes Upwork to migrate Freelancer contracts related to existing Engagements between service tiers by opening a new contract on the new service tier and then closing the old contract on the old service tier. If no end date is indicated on the old contract, the new contract will be established with a six month duration. In the event the old contract is either (i) a fixed price contract with no incomplete milestones or (ii) an hourly contract that has not had payments made under it over the past six months, then the old contract will only be closed on the old service tier and a new contract will not be entered into on the new service tier. Subscriber acknowledges that it will not be able to leave feedback for Freelancers for Engagements under contracts that are closed by Upwork pursuant to this provision. For the purposes of this provision, “Upgrade” means Subscriber’s election to utilize the Platform in a higher service tier and “Downgrade” means Subscriber’s election to utilize the Platform in a lower service tier.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears on a monthly basis for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing Services described in this Section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall pay Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge equal to the lesser of 2% per month or the maximum permitted by law, plus reimbursement for collection expenses. All amounts specified in the Order Form are in U.S. dollars. All amounts hereunder will be invoiced in, and must be paid in, U.S. dollars. The pricing during any Renewal Term will be the same as that during the prior Term period unless Upwork provides written notice of a price change at least 30 days before any renewal notice is due, in which case the pricing increase will be effective upon the commencement of the subsequent Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork normally charges Freelancers a fee stated on the Platform. However, if a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge such fee to the Freelancer for any work the Freelancer performs for Subscriber as a BYO Freelancer or via Upwork Payroll Services.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via the Upwork’s Payroll Services, Subscriber will pay the applicable Upwork Payroll Fee. Employment Provider will enter into an employment relationship with the applicable Freelancer that governs the provisioning of Freelancer Services and Freelancer Work Product. In such case, the standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee, as stated in the Order Form, applies to Freelancers located in the United States only. The Upwork Payroll Fee for international Freelancers varies by country. The Upwork Payroll Fee and all Employment-Related Costs will be provided to Subscriber for approval prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All fees and charges payable in connection this Agreement or an Order Form are exclusive of Taxes. Subscriber will be responsible for promptly paying or reimbursing, as the case might be, all Taxes arising in connection with this Agreement (without any offset or deduction to the fees paid to Upwork). For countries where Upwork is not registered to collect indirect Taxes, Subscriber will pay such Taxes via reverse charge mechanism to the appropriate tax authority. Subscriber will reimburse Upwork for any deficiency relating to Taxes that are Subscriber’s responsibility under this Agreement. The parties will cooperate in good faith to minimize Taxes to the extent legally permissible and will provide each other with any applicable Tax exemptions or certificates as reasonably requested and notify the other party if any such exemption or certificate is subsequently revoked or modified. If applicable, Subscriber shall communicate to Upwork its VAT or GST identification number(s) attributed by (i) the country where Subscriber has established its business or (ii) any other country where Subscriber has established a fixed establishment to which Upwork’s Services are provided. Upwork shall consider the Services under this Agreement to be for Subscriber's business use and provided to the location(s) of the Subscriber as identified by the provided VAT or GST identification number(s). Upon request, Subscriber shall promptly provide Upwork with proof of direct Tax payments made to applicable authorities. Subscriber shall promptly pay or reimburse Upwork for all costs and fines related to any liability incurred by Upwork as a result of Subscriber’s non-compliance or delay with its responsibilities herein. Subscriber’s obligation under this Section will survive the termination or expiration of this Agreement.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a purchase order to issue payment under this Agreement and Upwork has not received a copy of such purchase order, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid purchase order number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid purchase order has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork during the Exclusivity Period, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork $10,000 for each such Freelancer. This provision shall not apply to (i) BYO Freelancers or (ii) Freelancers responding to Subscriber’s indirect solicitations (such as employment agency referrals and internet job postings).
- Term. This Master Subscription Agreement will begin on the Effective Date and will continue for the duration of the initial term length specified in the Order Form. Unless sooner terminated in accordance with the terms of this Master Subscription Agreement, this Master Subscription Agreement will expire one year after the expiration of the last Order Form.
- Termination. Upon a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement immediately if such default continues and is not remedied within 30 days following written notice of default from the non-breaching party. Either party will have the right to terminate this Agreement immediately if the other party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either party provides notice of termination to the other, Subscriber will no longer be able to enter into new Engagements via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Ownership of the Platform and Services. All rights in and to the Platform and Services, including any modifications made thereto and derivatives thereof, exclusively belong to and at all times will remain the sole and exclusive property of Upwork. All rights not expressly granted to Subscriber and its Authorized Users with respect to the Platform and Services are reserved by Upwork. Subscriber will not take or permit any third party to take any action with respect to the Platform or Services that is not expressly authorized under this Agreement.
- User Content. Subscriber hereby grants (and represents and warrants that it has the right to grant) Upwork a non-exclusive, worldwide, perpetual, full-paid, royalty-free, transferable, and sublicenseable license to use, sell, sublicense, reproduce, distribute, disclose, perform, display, prepare derivative works of, and otherwise exploit Subscriber’s User Content for any lawful purpose.
- User Feedback. Upwork will own and have a royalty-free right to exploit any feedback, insights, and suggestions provided by or on behalf of Subscriber to Upwork concerning the functionality, features, and performance of the Platform, including without limitation the identification of errors or bugs or any suggested fixes or workarounds, improvements, modifications, or enhancements (“User Feedback”). Subscriber agrees that its provision of any User Feedback will be gratuitous, non-confidential, unrestricted, and made without any right to receive any compensation in return.
- Ownership of Freelancer Work Product. Ownership of all Freelancer Work Product will be governed by the Independent Contractor Agreement or employee agreement with the Freelancer, as applicable, both of which will contain a provision that requires a Freelancer to assign all ownership rights in Freelancer Work Product to Subscriber. Upwork will not own any Freelancer Work Product. In the event that ownership rights in Freelancer Work Product arising from an Engagement accrue to the benefit of Upwork, Upwork hereby assigns such rights to Subscriber.
- Representations and Warranties. Each party represents and warrants that: (i) it is an entity that is duly organized and validly existing under the laws of the jurisdiction in which it is established; (ii) it has full power and authority, and has obtained all required approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (i) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services or provisioning of Freelancer Work Product; (ii) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (iii) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services or Freelancer Work Product, and Upwork disclaims any and all liability relating thereto; (iv) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (v) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate; (vi) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed to complete their work; (vii) Upwork does not provide the premises at which the Freelancer will perform the work; and (viii) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Upwork Payroll Services. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, then Subscriber shall: (i) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (ii) absent exigent circumstances, (a) provide at least 72 hours advance notice (or longer, if required under applicable law) before terminating a worker’s employment assignment, or (b) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (iii) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber represents and warrants (i) that its benefit plans for U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA), and the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that it will not direct or exercise any control over a Freelancer that is classified as an independent contractor; and (iii) that it will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior written approval from Upwork.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud), is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence to evaluate Freelancer Information and has the proper knowledge, skill, and experience to evaluate Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES, AND SUBCONTRACTORS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY FREELANCER SERVICE OR FREELANCER WORK PRODUCT. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS HAVE ANY RESPONSIBILITY FOR FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Obligations and Restrictions. The receiving party will: (i) keep the disclosing party’s Confidential Information confidential; (ii) not disclose such Confidential Information to any third party other than an Authorized Recipient without the disclosing party’s prior written permission; (iii) exclusively use such Confidential Information for its intended purpose; and (iv) not remove any copyrights, trademark notices, or other indications of confidentiality from such Confidential Information. The receiving party may disclose Confidential Information to Authorized Recipients provided that each such Authorized Recipient is bound by confidentiality obligations that are at least as restrictive as the terms contained in this Agreement. The receiving party is responsible for its Authorized Recipients’ use and disclosure of Confidential Information and will take reasonable steps to ensure their compliance with this Agreement. Subscriber acknowledges that Freelancers working on their Engagements will have access to Confidential Information that is shared through the Platform with respect to such Engagements. Subscriber authorizes Upwork to collect data related to Subscriber’s use of the Services and Platform, to de-identify (with respect to Subscriber and any user) any such data, and to use and disclose any such data that is not identifiable to a specific person or to Subscriber.
- Compelled Disclosure. This Agreement does not prohibit a party from complying with (but only to the extent of) a valid legal requirement to disclose Confidential Information, but such party must make reasonable efforts to give the other party reasonable advance notice of such requirement.
- Return of Confidential Information. Upon termination of this Agreement or at the disclosing party’s request, the receiving party will promptly return or destroy the disclosing party’s Confidential Information that is in its or its Authorized Recipients’ possession (including materials containing or based upon such Confidential Information). Upon request, the receiving party will also certify in writing its compliance with this provision. However, each party is permitted to retain a copy of any Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that, notwithstanding the expiration of this Agreement, the terms of this Agreement will continue to apply to any Confidential Information that remains in the possession of the receiving party or its Authorized Recipients for as long as it remains in their possession.
- Equitable Relief. The receiving party acknowledges that the unauthorized use or disclosure of the disclosing party’s Confidential Information may cause the disclosing party irreparable harm and significant damages that may be difficult to calculate. Therefore, the disclosing party will have the right to seek equitable relief to prevent or stop any actual or threatened unauthorized use or disclosure of its Confidential Information in addition to any other rights and remedies that it may have.
- Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any losses, costs, damages, liabilities, judgments, or settlements awarded for Claims arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process, or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) User Content; (vi) Freelancer Services; or (vii) Freelancer Work Product.
- Worker Classification Indemnification by Upwork. Upwork will indemnify, defend, and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all losses, damages, liabilities, judgments, or settlements awarded for Claims to the extent caused by: (i) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (ii) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (iii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iv) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims to the extent arising out of, resulting from or in connection with (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; or (vi) Subscriber’s breach of its obligations in Section 6.4 (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each party (the “Indemnifying Party”) are contingent upon the other party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, for the duration of the Term, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days’ written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records. Subscriber will conduct audits in a manner that is designed to minimize disruptions to Upwork’s business operations. If errors are identified by an audit, then Upwork shall take prompt action to correct such errors.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide the Platform and one or more of its Services through Upwork, an Upwork Affiliate, or a third-party subcontractor. Upwork will at all times remain responsible for its Affiliates’ or subcontractors’ compliance with the terms of this Agreement.
- Governing Law. The laws of California will govern this Agreement and its interpretation without reference to its principles of conflicts of laws, provided, however, that any Claims made by any Freelancer located within the United States will be governed by the law of the state in which such Freelancer resides. All disputes arising out of this Agreement between the parties will be subject to the exclusive jurisdiction of and a venue located in the federal or state courts of Santa Clara County, California. Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection (and right to object) to such venue or jurisdiction on the basis that such forum is an inconvenient forum.
- Assignment. Neither party will be permitted to assign this agreement to a third party other than an affiliate or successor to its business or assets without the other party’s prior written consent. For avoidance of doubt, this clause does not restrict (or require consent in connection with) the transfer or assignment of this Agreement in connection with a merger, sale of assets, sale of stock, reorganization or otherwise by a party.
- Entire Agreement. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to Upwork and to reimburse Upwork hereunder, both parties will be excused from performance under this Agreement to the extent that either party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any act of god, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such party has used its commercially reasonable efforts to mitigate its effects, such party will give prompt written notice to the other party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision will be deemed to be severed from this Agreement and have no legal effect. Provided that the fundamental terms of this Agreement remain valid and enforceable following such severance, the remaining provisions of this Agreement will remain in full force and effect and binding upon the parties.
- Waiver. The waiver of one breach or default or any delay in exercising any rights hereunder will not constitute a waiver of any subsequent breach or default of such rights.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the party specified in this Agreement, such other address as either party may specify in writing or such address the party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither party will be deemed to be an agent of the other party and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Compliance with Law. Each party is responsible for and will comply with all laws and regulations that are applicable to their respective businesses, including Subscriber with respect to its use of the Platform and Engagement of Freelancers.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
Effective October 25, 2018 to June 5, 2019
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlling, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “BYO Freelancer” means a Freelancer that (i) Subscriber brings to its Talent Cloud® network from outside the Platform and (ii) has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies, and do not include Excluded Claims.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates or Employment Provider for any background checks, drug tests or other compliance or screening measures.
- “Effective Date” means the “Contract Start Date” listed on the first Order Form signed by the Parties.
- “Employment Provider” means Upwork’s third party employment provider.
- “Employment Related Costs” means any additional employment related costs, if applicable, for items Subscriber requires or that are required by law, including overtime premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Excluded Claims” means claims arising, in whole or in part, from (x) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (y) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (z) (i) Upwork’s misclassification of a Freelancer; (ii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iii) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(z)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period that starts on the day the Platform Freelancer is engaged by Subscriber and ends on the two-year anniversary of that day.
- “Freelancer” means a user that advertises and provides services on the Platform.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including bonuses authorized by Subscriber or expenses reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” means Freelancer Payments, Custom Compliance Costs and Employment Related Costs.
- “Freelancer Services” means the services that a Freelancer performs for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product and deliverables associated with the Freelancer Services.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “PO” means purchase order.
- “Program Management” means services provided to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent and skills needed to complete Subscriber’s project and help in drafting Subscriber’s project posts.
- “Services” means Upwork’s products and/or services provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation and/or provision of such products and/or services, including access to the Platform.
- “Taxes” means taxes, duties, levies, tariffs, and other governmental charges, including, without limitation, VAT, GST and similar taxes.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Services” means a service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows each Freelancer’s hours worked and work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Services available to Subscriber and (ii) grants to Subscriber a limited, terminable, non-exclusive, non-sublicensable (except as otherwise authorized herein), non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) access Subscriber’s Talent Cloud® network, (b) find and select Freelancers through the Platform, (c) receive and review Freelancer Services, and (d) approve Freelancer billing records or completed milestones and deliverables for payment by Upwork or the Employment Provider on behalf of Subscriber. During the Term, Upwork may modify the features and functionality of the Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Freelancer based on the information that Subscriber and Freelancer provide about the applicable engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. If Upwork requests information within Subscriber’s knowledge or control related to the engagement, the classification of a Freelancer or otherwise, Subscriber will provide Upwork with the requested information in a timely, accurate, and complete manner and agrees to provide notice to Upwork immediately in the event that to Subscriber’s knowledge, any such information has changed.
- Freelancer Engagement. Upwork will, based on its worker classification: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee. Upwork may delegate the engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in its sole discretion. Upwork will cause each Freelancer classified as an independent contractor to execute the Independent Contractor Agreement. If Freelancer is hired as an employee, Upwork will cause the Freelancer (through Employment Provider) to execute an employment agreement with confidentiality and intellectual property assignment provisions consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification, and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the engagement and payment of Freelancers, including laws related to worker classification and overtime pay (for any worker employed by Employment Provider) within the jurisdiction in which Freelancer Services will be provided; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. From time to time, Subscriber may request Program Management services from Upwork via a signed order form or via electronic mail. If Subscriber requests Program Management services from Upwork, Subscriber authorizes Upwork personnel to access Subscriber’s Upwork Enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, preparing and extending offers to Freelancers on behalf of Subscriber, and releasing payments. Subscriber agrees that all actions performed by Program Management personnel in its Upwork Enterprise account shall be considered to be actions by Subscriber. Any use by Subscriber of Program Management services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement. Any charged Program Management services are subject to the Service Fee.
- Affiliates. An Affiliate may receive services under this Agreement by directly entering into an order form with Upwork. By entering into an order form, each Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Subscriber agrees to be responsible for its Affiliates’ compliance with this Agreement and each Affiliate’s order form. All rights granted to an entity as an Affiliate hereunder will automatically and immediately cease as of the time such entity ceases to be an Affiliate.
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (a) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (b) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (y) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (z) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For deliverables-based work tied to milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 day period, then (a) the deliverable reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (b) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Workplace. Subscriber is responsible for the safety and protection of Freelancers, Subscriber’s other service providers, and Subscriber’s property while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Sensitive Duties. Subscriber will bear the entire risk of allowing Freelancers to handle sensitive duties, financial instruments (including credit cards and electronic payments), and any personal information. If Subscriber assigns a Freelancer any supervisory duties or gives a Freelancer authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those generally made by Subscriber’s executives, officers, or directors, Subscriber (and not Upwork) is solely responsible for any such decisions or actions.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material to the Services; (v) send or store material containing viruses, worms, Trojan horses, spam or other harmful computer code, files, scripts, agents or programs to or from the Services; (vi) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (vii) attempt to gain unauthorized access to the Services or its systems or networks; or (viii) use the Services in violation of applicable law.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing services described in this section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall be responsible for and shall pay to Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge of 2.0% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. All amounts in the Order Form and invoice are stated in, and shall be paid in, U.S. dollars. The pricing during any Renewal Term shall be the same as that during the prior Initial Term or Renewal Term, as applicable, unless Upwork has provided written notice of a price change at least thirty (30) days before the end of such prior Initial Term or Renewal Term, as applicable, in which case the pricing increase shall be effective upon the commencement of the Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork charges Freelancers the service fee stated on the Platform. If a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge a service fee to the Freelancer for any work the Freelancer performs for Subscriber.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via Upwork’s Payroll Services, Subscriber will pay the Upwork Payroll Fee. In such case, the Standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee and all Employment Related Costs will be provided to Subscriber prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of Taxes. Subscriber shall be responsible for paying all Taxes associated with the services provided in this Agreement (without any offset or deduction to the fees paid to Upwork) other than U.S. Taxes based on Upwork’s net income. Subscriber agrees to hold Upwork harmless from all claims and liability arising from Subscriber’s failure to report or pay any such Taxes.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a PO to issue payment under this Agreement and Upwork has not received a copy of such PO, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid PO number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid PO has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork during the Exclusivity Period, Subscriber agrees to pay Upwork ten thousand dollars ($10,000) for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork ten thousand dollars ($10,000) for each such Freelancer.
- Term. This Agreement will begin on the Effective Date and will continue until through the duration of the Term unless terminated in accordance with this Agreement.
- Termination. Upon a material breach of this Agreement by either Party, the non-breaching Party may terminate this Agreement immediately if such default continues and is not remedied within thirty (30) days following written notice of default from the non-breaching Party. Either Party will have the right to terminate this Agreement immediately if the other Party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either Party provides notice of termination to the other, Subscriber will no longer be able to engage Freelancers for new jobs via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the Parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Representations and Warranties. Each Party represents and warrants that: (i) it is a corporation duly organized and validly existing under the laws of the jurisdiction in which it is incorporated; (ii) it has full corporate power and authority, and has obtained all corporate approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (a) Subscriber will comply with all applicable law; (b) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services; (c) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (d) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services, and Upwork disclaims any and all liability relating thereto; (e) Upwork does not introduce Freelancers to clients (including Subscriber) or help Freelancers find engagements; (f) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (g) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a project; (h) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed for a particular project (i) Upwork does not provide the premises at which the Freelancer will perform the work; (j) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- Subscriber Responsibilities for Freelancers Hired as Employees. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, Subscriber shall: (a) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (b) absent exigent circumstances, (i) provide at least 72 hours advance notice before terminating a worker’s employment assignment, or (ii) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (c) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber will ensure (i) that Subscriber’s benefit plans for Subscriber’s U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA) and/or the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that Subscriber owns or has necessary licenses to all content that Subscriber posts to the Platform or provides to Freelancers for jobs or via the Platform; (iii) that Subscriber will not direct or exercise any control over a Freelancer that is classified as an independent contractor; (iv) Subscriber will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior approval from Upwork; and (v) all information provided by Subscriber to Upwork regarding Subscriber and the engagements on the Platform will be accurate and Subscriber will update all such information on the Platform or provide notice to Upwork immediately to the extent Subscriber is aware that such information has changed.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud) is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence and/or having the proper knowledge, skill, and experience to evaluate the Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES AND PARTNERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY SERVICE, DELIVERABLE OR WORK PRODUCT PROVIDED BY A FREELANCER TO SUBSCRIBER. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR PARTNERS PROVIDE ANY EXPRESS WARRANTY OF, HAVE ANY IMPLIED WARRANTY OF, OR HAVE ANY RESPONSIBILITY FOR, FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Confidential Information. All information disclosed by one Party (the “Discloser”) to the other (the “Recipient”) that (i) is marked “confidential” or “proprietary” before its disclosure to the Recipient; or (ii) the Discloser orally discloses to the Recipient, identifies as confidential or proprietary at the time of disclosure, and confirms to be such in writing within 10 days of such disclosure is “Confidential Information” under this Agreement. Confidential Information does not include information which: (i) is now, or later becomes, through no act or failure to act on the part of the Recipient, generally known or readily available to the public; (ii) was acquired by the Recipient before receiving such information from the Discloser and without restriction as to use or disclosure; (iii) is furnished to the Recipient by a third party rightfully entitled to it, without restriction as to use or disclosure; or (iv) was independently developed by the Recipient without reference to the Discloser’s Confidential Information. This Agreement, its terms and all exhibits, is the Confidential Information of Upwork.
- Use and Restrictions. The Recipient agrees: (i) to hold the Discloser’s Confidential Information in strict confidence, (ii) not to disclose the Discloser’s Confidential Information to any third parties except as reasonably necessary for the Recipient to perform its obligations hereunder, and (iii) not to use any of the Discloser’s Confidential Information except to perform the Recipient’s obligations under this Agreement. Notwithstanding the foregoing, the Recipient hereto may disclose any Confidential Information of the Discloser hereunder to the Recipient’s agents, attorneys and other representatives (under a duty not to disclose) and having a bona fide need to know such Confidential Information or any court of competent jurisdiction as reasonably required to resolve any dispute between the Parties. In addition, Upwork may disclose Subscriber’s Confidential Information to any Freelancer engaged under this Agreement so long as (i) such disclosure is reasonably required for the Freelancer to perform Freelancer Services, and (ii) the Freelancer has entered into an agreement related to such Confidential Information with terms at least as restrictive as those in this Agreement.
- Legal Obligations. If Recipient is requested or required by law, government action, subpoena or other court order to disclose any of the Discloser’s Confidential Information, Recipient may disclose such information without liability under this Agreement, provided that (i) the Discloser has been given a reasonable opportunity to (a) intervene in any proceeding to try to protect the Confidential Information and (b) review the text or contents of such disclosure before it is made; and (ii) the disclosure is limited to only the Confidential Information specifically required to be disclosed.
- Remedies. Each Party agrees that its obligations provided in this sections under Confidential Information are necessary and reasonable in order to protect the Discloser and its business, and each Party expressly agrees that monetary damages may be inadequate to compensate the Discloser for any breach by the Recipient of its confidentiality covenants and agreements set forth in this Agreement. Accordingly, each Party agrees and acknowledges that any such breach or threatened breach may cause irreparable injury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Recipient, without the necessity of proving actual damages or posting any bond.
- Indemnification by Upwork. Upwork will indemnify, defend and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all Claims and any and all losses, damages, liabilities, judgments, or settlements awarded for such Claims, that are based on: (a) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (b) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (c) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (d) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment. Upwork will further indemnify, defend and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all Claims and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims, arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Freelancer Services or (vi) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims, based on (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; and (vi) Subscriber’s breach of its obligations in Section 6(c) (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each Party (the “Indemnifying Party”) are contingent upon the other Party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide one or more services described in this Agreement through Upwork, any other Upwork affiliate, or other third party service provider.
- Governing Law. This Agreement will in all respects be is governed by the laws of the State of California and the United States of America without reference to its principles of conflicts of laws. The Parties hereby agree that all disputes arising out of this Agreement will be subject to the exclusive jurisdiction of and venue in the federal and state courts within Santa Clara County, California and Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection to venue in such courts and any claim that such forum is an inconvenient forum.
- Assignment. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Subscriber may not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Upwork’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void. Upwork may assign this Agreement to any affiliate or successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.
- Entire Agreement. This Agreement represents the entire agreement between the Parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both Parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The Parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to and/or reimburse Upwork hereunder, both Parties shall be excused from performance under this Agreement to the extent that either Party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such Party has used its commercially reasonable efforts to mitigate its effects, such Party will give prompt written notice to the other Party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the Party specified in this Agreement, such other address as either Party may specify in writing or such address the Party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither Party will be deemed to be an agent of the other Party and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
- Electronic Signatures. The Parties consent to the use of electronic signatures for purposes of signing this Agreement, intending to become legally bound.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing Party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.
Effective October 25, 2018 to October 25, 2018
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlling, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “BYO Freelancer” means a Freelancer that (i) Subscriber brings to its Talent Cloud® network from outside the Platform and (ii) has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies, and do not include Excluded Claims.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates or Employment Provider for any background checks, drug tests or other compliance or screening measures.
- “Effective Date” means the “Contract Start Date” listed on the first Order Form signed by the Parties.
- “Employment Provider” means Upwork’s third party employment provider.
- “Employment Related Costs” means any additional employment related costs, if applicable, for items Subscriber requires or that are required by law, including overtime premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Excluded Claims” means claims arising, in whole or in part, from (x) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (y) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (z) (i) Upwork’s misclassification of a Freelancer; (ii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iii) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(z)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period that starts on the day the Platform Freelancer is engaged by Subscriber and ends on the two-year anniversary of that day.
- “Freelancer” means a user that advertises and provides services on the Platform.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including bonuses authorized by Subscriber or expenses reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” means Freelancer Payments, Custom Compliance Costs and Employment Related Costs.
- “Freelancer Services” means the services that a Freelancer performs for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product and deliverables associated with the Freelancer Services.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “PO” means purchase order.
- “Program Management” means services provided to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent and skills needed to complete Subscriber’s project and help in drafting Subscriber’s project posts.
- “Services” means Upwork’s products and/or services provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation and/or provision of such products and/or services, including access to the Platform.
- “Taxes” means taxes, duties, levies, tariffs, and other governmental charges, including, without limitation, VAT, GST and similar taxes.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Services” means a service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows each Freelancer’s hours worked and work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Services available to Subscriber and (ii) grants to Subscriber a limited, terminable, non-exclusive, non-sublicensable (except as otherwise authorized herein), non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) access Subscriber’s Talent Cloud® network, (b) find and select Freelancers through the Platform, (c) receive and review Freelancer Services, and (d) approve Freelancer billing records or completed milestones and deliverables for payment by Upwork or the Employment Provider on behalf of Subscriber. During the Term, Upwork may modify the features and functionality of the Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Freelancer based on the information that Subscriber and Freelancer provide about the applicable engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. If Upwork requests information within Subscriber’s knowledge or control related to the engagement, the classification of a Freelancer or otherwise, Subscriber will provide Upwork with the requested information in a timely, accurate, and complete manner and agrees to provide notice to Upwork immediately in the event that to Subscriber’s knowledge, any such information has changed.
- Freelancer Engagement. Upwork will, based on its worker classification: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee. Upwork may delegate the engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in its sole discretion. Upwork will cause each Freelancer classified as an independent contractor to execute the Independent Contractor Agreement. If Freelancer is hired as an employee, Upwork will cause the Freelancer (through Employment Provider) to execute an employment agreement with confidentiality and intellectual property assignment provisions consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification, and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the engagement and payment of Freelancers, including laws related to worker classification and overtime pay (for any worker employed by Employment Provider) within the jurisdiction in which Freelancer Services will be provided; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. From time to time, Subscriber may request Program Management services from Upwork via a signed order form or via electronic mail. If Subscriber requests Program Management services from Upwork, Subscriber authorizes Upwork personnel to access Subscriber’s Upwork Enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, preparing and extending offers to Freelancers on behalf of Subscriber, and releasing payments. Subscriber agrees that all actions performed by Program Management personnel in its Upwork Enterprise account shall be considered to be actions by Subscriber. Any use by Subscriber of Program Management services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement. Any charged Program Management services are subject to the Service Fee.
- Affiliates. An Affiliate may receive services under this Agreement by directly entering into an order form with Upwork. By entering into an order form, each Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Subscriber agrees to be responsible for its Affiliates’ compliance with this Agreement and each Affiliate’s order form. All rights granted to an entity as an Affiliate hereunder will automatically and immediately cease as of the time such entity ceases to be an Affiliate.
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (a) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (b) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (y) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (z) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For deliverables-based work tied to milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 day period, then (a) the deliverable reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (b) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Workplace. Subscriber is responsible for the safety and protection of Freelancers, Subscriber’s other service providers, and Subscriber’s property while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Sensitive Duties. Subscriber will bear the entire risk of allowing Freelancers to handle sensitive duties, financial instruments (including credit cards and electronic payments), and any personal information. If Subscriber assigns a Freelancer any supervisory duties or gives a Freelancer authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those generally made by Subscriber’s executives, officers, or directors, Subscriber (and not Upwork) is solely responsible for any such decisions or actions.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material to the Services; (v) send or store material containing viruses, worms, Trojan horses, spam or other harmful computer code, files, scripts, agents or programs to or from the Services; (vi) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (vii) attempt to gain unauthorized access to the Services or its systems or networks; or (viii) use the Services in violation of applicable law.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing services described in this section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall be responsible for and shall pay to Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge of 2.0% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. All amounts in the Order Form and invoice are stated in, and shall be paid in, U.S. dollars. The pricing during any Renewal Term shall be the same as that during the prior Initial Term or Renewal Term, as applicable, unless Upwork has provided written notice of a price change at least thirty (30) days before the end of such prior Initial Term or Renewal Term, as applicable, in which case the pricing increase shall be effective upon the commencement of the Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork charges Freelancers the service fee stated on the Platform. If a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge a service fee to the Freelancer for any work the Freelancer performs for Subscriber.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via Upwork’s Payroll Services, Subscriber will pay the Upwork Payroll Fee. In such case, the Standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee and all Employment Related Costs will be provided to Subscriber prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of Taxes. Subscriber shall be responsible for paying all Taxes associated with the services provided in this Agreement (without any offset or deduction to the fees paid to Upwork) other than U.S. Taxes based on Upwork’s net income. Subscriber agrees to hold Upwork harmless from all claims and liability arising from Subscriber’s failure to report or pay any such Taxes.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a PO to issue payment under this Agreement and Upwork has not received a copy of such PO, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid PO number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid PO has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork during the Exclusivity Period, Subscriber agrees to pay Upwork ten thousand dollars ($10,000) for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork ten thousand dollars ($10,000) for each such Freelancer.
- Term. This Agreement will begin on the Effective Date and will continue until through the duration of the Term unless terminated in accordance with this Agreement.
- Termination. Upon a material breach of this Agreement by either Party, the non-breaching Party may terminate this Agreement immediately if such default continues and is not remedied within thirty (30) days following written notice of default from the non-breaching Party. Either Party will have the right to terminate this Agreement immediately if the other Party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either Party provides notice of termination to the other, Subscriber will no longer be able to engage Freelancers for new jobs via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the Parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Representations and Warranties. Each Party represents and warrants that: (i) it is a corporation duly organized and validly existing under the laws of the jurisdiction in which it is incorporated; (ii) it has full corporate power and authority, and has obtained all corporate approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (a) Subscriber will comply with all applicable law; (b) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services; (c) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (d) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services, and Upwork disclaims any and all liability relating thereto; (e) Upwork does not introduce Freelancers to clients (including Subscriber) or help Freelancers find engagements; (f) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (g) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a project; (h) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed for a particular project (i) Upwork does not provide the premises at which the Freelancer will perform the work; (j) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- Subscriber Responsibilities for Freelancers Hired as Employees. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, Subscriber shall: (a) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (b) absent exigent circumstances, (i) provide at least 72 hours advance notice before terminating a worker’s employment assignment, or (ii) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (c) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber will ensure (i) that Subscriber’s benefit plans for Subscriber’s U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA) and/or the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that Subscriber owns or has necessary licenses to all content that Subscriber posts to the Platform or provides to Freelancers for jobs or via the Platform; (iii) that Subscriber will not direct or exercise any control over a Freelancer that is classified as an independent contractor; (iv) Subscriber will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior approval from Upwork; and (v) all information provided by Subscriber to Upwork regarding Subscriber and the engagements on the Platform will be accurate and Subscriber will update all such information on the Platform or provide notice to Upwork immediately to the extent Subscriber is aware that such information has changed.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud) is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence and/or having the proper knowledge, skill, and experience to evaluate the Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES AND PARTNERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY SERVICE, DELIVERABLE OR WORK PRODUCT PROVIDED BY A FREELANCER TO SUBSCRIBER. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR PARTNERS PROVIDE ANY EXPRESS WARRANTY OF, HAVE ANY IMPLIED WARRANTY OF, OR HAVE ANY RESPONSIBILITY FOR, FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Confidential Information. All information disclosed by one Party (the “Discloser”) to the other (the “Recipient”) that (i) is marked “confidential” or “proprietary” before its disclosure to the Recipient; or (ii) the Discloser orally discloses to the Recipient, identifies as confidential or proprietary at the time of disclosure, and confirms to be such in writing within 10 days of such disclosure is “Confidential Information” under this Agreement. Confidential Information does not include information which: (i) is now, or later becomes, through no act or failure to act on the part of the Recipient, generally known or readily available to the public; (ii) was acquired by the Recipient before receiving such information from the Discloser and without restriction as to use or disclosure; (iii) is furnished to the Recipient by a third party rightfully entitled to it, without restriction as to use or disclosure; or (iv) was independently developed by the Recipient without reference to the Discloser’s Confidential Information. This Agreement, its terms and all exhibits, is the Confidential Information of Upwork.
- Use and Restrictions. The Recipient agrees: (i) to hold the Discloser’s Confidential Information in strict confidence, (ii) not to disclose the Discloser’s Confidential Information to any third parties except as reasonably necessary for the Recipient to perform its obligations hereunder, and (iii) not to use any of the Discloser’s Confidential Information except to perform the Recipient’s obligations under this Agreement. Notwithstanding the foregoing, the Recipient hereto may disclose any Confidential Information of the Discloser hereunder to the Recipient’s agents, attorneys and other representatives (under a duty not to disclose) and having a bona fide need to know such Confidential Information or any court of competent jurisdiction as reasonably required to resolve any dispute between the Parties. In addition, Upwork may disclose Subscriber’s Confidential Information to any Freelancer engaged under this Agreement so long as (i) such disclosure is reasonably required for the Freelancer to perform Freelancer Services, and (ii) the Freelancer has entered into an agreement related to such Confidential Information with terms at least as restrictive as those in this Agreement.
- Legal Obligations. If Recipient is requested or required by law, government action, subpoena or other court order to disclose any of the Discloser’s Confidential Information, Recipient may disclose such information without liability under this Agreement, provided that (i) the Discloser has been given a reasonable opportunity to (a) intervene in any proceeding to try to protect the Confidential Information and (b) review the text or contents of such disclosure before it is made; and (ii) the disclosure is limited to only the Confidential Information specifically required to be disclosed.
- Remedies. Each Party agrees that its obligations provided in this sections under Confidential Information are necessary and reasonable in order to protect the Discloser and its business, and each Party expressly agrees that monetary damages may be inadequate to compensate the Discloser for any breach by the Recipient of its confidentiality covenants and agreements set forth in this Agreement. Accordingly, each Party agrees and acknowledges that any such breach or threatened breach may cause irreparable injury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Recipient, without the necessity of proving actual damages or posting any bond.
- Indemnification by Upwork. Upwork will indemnify, defend and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all Claims and any and all losses, damages, liabilities, judgments, or settlements awarded for such Claims, that are based on: (a) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (b) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (c) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (d) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment. Upwork will further indemnify, defend and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all Claims and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims, arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Freelancer Services or (vi) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims, based on (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; and (vi) Subscriber’s breach of its obligations in Section 6(c) (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each Party (the “Indemnifying Party”) are contingent upon the other Party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide one or more services described in this Agreement through Upwork, any other Upwork affiliate, or other third party service provider.
- Governing Law. This Agreement will in all respects be is governed by the laws of the State of California and the United States of America without reference to its principles of conflicts of laws. The Parties hereby agree that all disputes arising out of this Agreement will be subject to the exclusive jurisdiction of and venue in the federal and state courts within Santa Clara County, California and Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection to venue in such courts and any claim that such forum is an inconvenient forum.
- Assignment. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Subscriber may not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Upwork’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void. Upwork may assign this Agreement to any affiliate or successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.
- Entire Agreement. This Agreement represents the entire agreement between the Parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both Parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The Parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to and/or reimburse Upwork hereunder, both Parties shall be excused from performance under this Agreement to the extent that either Party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such Party has used its commercially reasonable efforts to mitigate its effects, such Party will give prompt written notice to the other Party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the Party specified in this Agreement, such other address as either Party may specify in writing or such address the Party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither Party will be deemed to be an agent of the other Party and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
- Electronic Signatures. The Parties consent to the use of electronic signatures for purposes of signing this Agreement, intending to become legally bound.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing Party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.
Effective October 15, 2018 to October 25, 2018
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlling, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “BYO Freelancer” means a Freelancer that (i) Subscriber brings to its Talent Cloud® network from outside the Platform and (ii) has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies, and do not include Excluded Claims.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates or Employment Provider for any background checks, drug tests or other compliance or screening measures.
- “Effective Date” means the “Contract Start Date” listed on the first Order Form signed by the Parties.
- “Employment Provider” means Upwork’s third party employment provider.
- “Employment Related Costs” means any additional employment related costs, if applicable, for items Subscriber requires or that are required by law, including overtime premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Excluded Claims” means claims arising, in whole or in part, from (x) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (y) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (z) (i) Upwork’s misclassification of a Freelancer; (ii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iii) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(z)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period that starts on the day the Platform Freelancer is engaged by Subscriber and ends on the two-year anniversary of that day.
- “Freelancer” means a user that advertises and provides services on the Platform.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including bonuses authorized by Subscriber or expenses reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” means Freelancer Payments, Custom Compliance Costs and Employment Related Costs.
- “Freelancer Services” means the services that a Freelancer performs for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product and deliverables associated with the Freelancer Services.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “PO” means purchase order.
- “Program Management” means services provided to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent and skills needed to complete Subscriber’s project and help in drafting Subscriber’s project posts.
- “Services” means Upwork’s products and/or services provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation and/or provision of such products and/or services, including access to the Platform.
- “Taxes” means taxes, duties, levies, tariffs, and other governmental charges, including, without limitation, VAT, GST and similar taxes.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Services” means a service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows each Freelancer’s hours worked and work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Services available to Subscriber and (ii) grants to Subscriber a limited, terminable, non-exclusive, non-sublicensable (except as otherwise authorized herein), non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) access Subscriber’s Talent Cloud® network, (b) find and select Freelancers through the Platform, (c) receive and review Freelancer Services, and (d) approve Freelancer billing records or completed milestones and deliverables for payment by Upwork or the Employment Provider on behalf of Subscriber. During the Term, Upwork may modify the features and functionality of the Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Freelancer based on the information that Subscriber and Freelancer provide about the applicable engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. If Upwork requests information within Subscriber’s knowledge or control related to the engagement, the classification of a Freelancer or otherwise, Subscriber will provide Upwork with the requested information in a timely, accurate, and complete manner and agrees to provide notice to Upwork immediately in the event that to Subscriber’s knowledge, any such information has changed.
- Freelancer Engagement. Upwork will, based on its worker classification: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee. Upwork may delegate the engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in its sole discretion. Upwork will cause each Freelancer classified as an independent contractor to execute the Independent Contractor Agreement. If Freelancer is hired as an employee, Upwork will cause the Freelancer (through Employment Provider) to execute an employment agreement with confidentiality and intellectual property assignment provisions consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification, and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the engagement and payment of Freelancers, including laws related to worker classification and overtime pay (for any worker employed by Employment Provider) within the jurisdiction in which Freelancer Services will be provided; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. From time to time, Subscriber may request Program Management services from Upwork via a signed order form or via electronic mail. If Subscriber requests Program Management services from Upwork, Subscriber authorizes Upwork personnel to access Subscriber’s Upwork Enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, preparing and extending offers to Freelancers on behalf of Subscriber, and releasing payments. Subscriber agrees that all actions performed by Program Management personnel in its Upwork Enterprise account shall be considered to be actions by Subscriber. Any use by Subscriber of Program Management services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement. Any charged Program Management services are subject to the Service Fee.
- Affiliates. An Affiliate may receive services under this Agreement by directly entering into an order form with Upwork. By entering into an order form, each Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Subscriber agrees to be responsible for its Affiliates’ compliance with this Agreement and each Affiliate’s order form. All rights granted to an entity as an Affiliate hereunder will automatically and immediately cease as of the time such entity ceases to be an Affiliate.
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (a) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (b) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (y) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (z) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For deliverables-based work tied to milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 day period, then (a) the deliverable reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (b) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Workplace. Subscriber is responsible for the safety and protection of Freelancers, Subscriber’s other service providers, and Subscriber’s property while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Sensitive Duties. Subscriber will bear the entire risk of allowing Freelancers to handle sensitive duties, financial instruments (including credit cards and electronic payments), and any personal information. If Subscriber assigns a Freelancer any supervisory duties or gives a Freelancer authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those generally made by Subscriber’s executives, officers, or directors, Subscriber (and not Upwork) is solely responsible for any such decisions or actions.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material to the Services; (v) send or store material containing viruses, worms, Trojan horses, spam or other harmful computer code, files, scripts, agents or programs to or from the Services; (vi) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (vii) attempt to gain unauthorized access to the Services or its systems or networks; or (viii) use the Services in violation of applicable law.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing services described in this section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall be responsible for and shall pay to Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge of 2.0% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. All amounts in the Order Form and invoice are stated in, and shall be paid in, U.S. dollars. The pricing during any Renewal Term shall be the same as that during the prior Initial Term or Renewal Term, as applicable, unless Upwork has provided written notice of a price change at least thirty (30) days before the end of such prior Initial Term or Renewal Term, as applicable, in which case the pricing increase shall be effective upon the commencement of the Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork charges Freelancers the service fee stated on the Platform. If a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge a service fee to the Freelancer for any work the Freelancer performs for Subscriber.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via Upwork’s Payroll Services, Subscriber will pay the Upwork Payroll Fee. In such case, the Standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee and all Employment Related Costs will be provided to Subscriber prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of Taxes. Subscriber shall be responsible for paying all Taxes associated with the services provided in this Agreement (without any offset or deduction to the fees paid to Upwork) other than U.S. Taxes based on Upwork’s net income. Subscriber agrees to hold Upwork harmless from all claims and liability arising from Subscriber’s failure to report or pay any such Taxes.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a PO to issue payment under this Agreement and Upwork has not received a copy of such PO, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid PO number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid PO has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork during the Exclusivity Period, Subscriber agrees to pay Upwork ten thousand dollars ($10,000) for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork ten thousand dollars ($10,000) for each such Freelancer.
- Term. This Agreement will begin on the Effective Date and will continue until through the duration of the Term unless terminated in accordance with this Agreement.
- Termination. Upon a material breach of this Agreement by either Party, the non-breaching Party may terminate this Agreement immediately if such default continues and is not remedied within thirty (30) days following written notice of default from the non-breaching Party. Either Party will have the right to terminate this Agreement immediately if the other Party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either Party provides notice of termination to the other, Subscriber will no longer be able to engage Freelancers for new jobs via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the Parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Representations and Warranties. Each Party represents and warrants that: (i) it is a corporation duly organized and validly existing under the laws of the jurisdiction in which it is incorporated; (ii) it has full corporate power and authority, and has obtained all corporate approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (a) Subscriber will comply with all applicable law; (b) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services; (c) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (d) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services, and Upwork disclaims any and all liability relating thereto; (e) Upwork does not introduce Freelancers to clients (including Subscriber) or help Freelancers find engagements; (f) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (g) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a project; (h) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed for a particular project (i) Upwork does not provide the premises at which the Freelancer will perform the work; (j) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Arbitration with Freelancer. Subscriber understands that the applicable Independent Contractor Agreement contains an arbitration provision identifying Subscriber as a third-party beneficiary. Subscriber agrees to be bound by such provision.
- Subscriber Responsibilities for Freelancers Hired as Employees. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, Subscriber shall: (a) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (b) absent exigent circumstances, (i) provide at least 72 hours advance notice before terminating a worker’s employment assignment, or (ii) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (c) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber will ensure (i) that Subscriber’s benefit plans for Subscriber’s U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA) and/or the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that Subscriber owns or has necessary licenses to all content that Subscriber posts to the Platform or provides to Freelancers for jobs or via the Platform; (iii) that Subscriber will not direct or exercise any control over a Freelancer that is classified as an independent contractor; (iv) Subscriber will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior approval from Upwork; and (v) all information provided by Subscriber to Upwork regarding Subscriber and the engagements on the Platform will be accurate and Subscriber will update all such information on the Platform or provide notice to Upwork immediately to the extent Subscriber is aware that such information has changed.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud) is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence and/or having the proper knowledge, skill, and experience to evaluate the Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES AND PARTNERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY SERVICE, DELIVERABLE OR WORK PRODUCT PROVIDED BY A FREELANCER TO SUBSCRIBER. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR PARTNERS PROVIDE ANY EXPRESS WARRANTY OF, HAVE ANY IMPLIED WARRANTY OF, OR HAVE ANY RESPONSIBILITY FOR, FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Confidential Information. All information disclosed by one Party (the “Discloser”) to the other (the “Recipient”) that (i) is marked “confidential” or “proprietary” before its disclosure to the Recipient; or (ii) the Discloser orally discloses to the Recipient, identifies as confidential or proprietary at the time of disclosure, and confirms to be such in writing within 10 days of such disclosure is “Confidential Information” under this Agreement. Confidential Information does not include information which: (i) is now, or later becomes, through no act or failure to act on the part of the Recipient, generally known or readily available to the public; (ii) was acquired by the Recipient before receiving such information from the Discloser and without restriction as to use or disclosure; (iii) is furnished to the Recipient by a third party rightfully entitled to it, without restriction as to use or disclosure; or (iv) was independently developed by the Recipient without reference to the Discloser’s Confidential Information. This Agreement, its terms and all exhibits, is the Confidential Information of Upwork.
- Use and Restrictions. The Recipient agrees: (i) to hold the Discloser’s Confidential Information in strict confidence, (ii) not to disclose the Discloser’s Confidential Information to any third parties except as reasonably necessary for the Recipient to perform its obligations hereunder, and (iii) not to use any of the Discloser’s Confidential Information except to perform the Recipient’s obligations under this Agreement. Notwithstanding the foregoing, the Recipient hereto may disclose any Confidential Information of the Discloser hereunder to the Recipient’s agents, attorneys and other representatives (under a duty not to disclose) and having a bona fide need to know such Confidential Information or any court of competent jurisdiction as reasonably required to resolve any dispute between the Parties. In addition, Upwork may disclose Subscriber’s Confidential Information to any Freelancer engaged under this Agreement so long as (i) such disclosure is reasonably required for the Freelancer to perform Freelancer Services, and (ii) the Freelancer has entered into an agreement related to such Confidential Information with terms at least as restrictive as those in this Agreement.
- Legal Obligations. If Recipient is requested or required by law, government action, subpoena or other court order to disclose any of the Discloser’s Confidential Information, Recipient may disclose such information without liability under this Agreement, provided that (i) the Discloser has been given a reasonable opportunity to (a) intervene in any proceeding to try to protect the Confidential Information and (b) review the text or contents of such disclosure before it is made; and (ii) the disclosure is limited to only the Confidential Information specifically required to be disclosed.
- Remedies. Each Party agrees that its obligations provided in this sections under Confidential Information are necessary and reasonable in order to protect the Discloser and its business, and each Party expressly agrees that monetary damages may be inadequate to compensate the Discloser for any breach by the Recipient of its confidentiality covenants and agreements set forth in this Agreement. Accordingly, each Party agrees and acknowledges that any such breach or threatened breach may cause irreparable injury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Recipient, without the necessity of proving actual damages or posting any bond.
- Indemnification by Upwork. Upwork will indemnify, defend and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all Claims and any and all losses, damages, liabilities, judgments, or settlements awarded for such Claims, that are based on: (a) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (b) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (c) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (d) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment. Upwork will further indemnify, defend and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all Claims and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims, arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Freelancer Services or (vi) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims, based on (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; and (vi) Subscriber’s breach of its obligations in Section 6(c) (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each Party (the “Indemnifying Party”) are contingent upon the other Party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide one or more services described in this Agreement through Upwork, any other Upwork affiliate, or other third party service provider.
- Governing Law. This Agreement will in all respects be is governed by the laws of the State of California and the United States of America without reference to its principles of conflicts of laws. The Parties hereby agree that all disputes arising out of this Agreement will be subject to the exclusive jurisdiction of and venue in the federal and state courts within Santa Clara County, California and Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection to venue in such courts and any claim that such forum is an inconvenient forum.
- Assignment. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Subscriber may not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Upwork’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void. Upwork may assign this Agreement to any affiliate or successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.
- Entire Agreement. This Agreement represents the entire agreement between the Parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both Parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The Parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to and/or reimburse Upwork hereunder, both Parties shall be excused from performance under this Agreement to the extent that either Party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such Party has used its commercially reasonable efforts to mitigate its effects, such Party will give prompt written notice to the other Party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the Party specified in this Agreement, such other address as either Party may specify in writing or such address the Party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither Party will be deemed to be an agent of the other Party and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
- Electronic Signatures. The Parties consent to the use of electronic signatures for purposes of signing this Agreement, intending to become legally bound.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing Party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.
Effective October 3, 2018 to October 15, 2018
DownloadTable of Contents
- “Affiliate” means an entity which directly or indirectly controls, is controlling, or is under common control with Subscriber, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means direct or indirect ownership or control of more than 50% of the voting interests of Subscriber.
- “BYO Freelancer” means a Freelancer that (i) Subscriber brings to its Talent Cloud® network from outside the Platform and (ii) has not (as of the time Subscriber introduces the Freelancer to the Platform) registered as a freelancer on the Platform.
- “Claims” means any and all third-party claims, suits or proceedings, including without limitation claims or actions by applicable government agencies, and do not include Excluded Claims.
- “Custom Compliance Costs” means all third-party costs incurred by Upwork, its affiliates or Employment Provider for any background checks, drug tests or other compliance or screening measures.
- “Effective Date” means the “Contract Start Date” listed on the first Order Form signed by the Parties.
- “Employment Provider” means Upwork’s third party employment provider.
- “Employment Related Costs” means any additional employment related costs, if applicable, for items Subscriber requires or that are required by law, including overtime premium pay, expense reimbursements, paid sick leave, and Affordable Care Act (ACA) health insurance contributions, paid vacation, severance, notice or termination costs, jurisdictional costs, and other similar benefits.
- “Excluded Claims” means claims arising, in whole or in part, from (x) Subscriber’s direct engagement (whether as an employee or independent contractor) of Freelancer before, after or outside of Upwork’s engagement of Freelancer to provide Freelancer Services to Subscriber under this Agreement, (y) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services, or (z) (i) Upwork’s misclassification of a Freelancer; (ii) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (iii) Upwork or Employment Provider’s failure to make a payment to Freelancer, if, with respect to part “(z)”, the underlying misclassification, failure to comply or failure to pay was based in whole or in part on incomplete or inaccurate information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber.
- “Exclusivity Period” means the period that starts on the day the Platform Freelancer is engaged by Subscriber and ends on the two-year anniversary of that day.
- “Freelancer” means a user that advertises and provides services on the Platform.
- “Freelancer Information” means any information regarding a Freelancer on the Platform.
- “Freelancer Payments” means all payments made by Upwork or Employment Provider on behalf of Subscriber to Freelancers in accordance with this Agreement, including bonuses authorized by Subscriber or expenses reimbursed by Upwork or Employment Provider to a Freelancer.
- “Freelancer Payments and Costs” means Freelancer Payments, Custom Compliance Costs and Employment Related Costs.
- “Freelancer Services” means the services that a Freelancer performs for Subscriber based on the Subscriber’s project post and description on the Platform.
- “Freelancer Work Product” means all work, work product and deliverables associated with the Freelancer Services.
- “Independent Contractor Agreement” means the Independent Contractor Agreement between Upwork Talent Group and the Freelancer, in substantially the form located at www.upwork.com/legal#independent-contractor-agreement.
- “Order Form” means the applicable enterprise order form executed by Subscriber and Upwork that references this Agreement.
- “Platform” means www.upwork.com.
- “Platform Freelancer” means a Freelancer that is not a BYO Freelancer.
- “PO” means purchase order.
- “Program Management” means services provided to Subscriber to help Subscriber use its Upwork account on the Platform, including without limitation, assistance by Upwork to help determine Subscriber’s project needs, suggestion of certain talent and skills needed to complete Subscriber’s project and help in drafting Subscriber’s project posts.
- “Services” means Upwork’s products and/or services provided to Subscriber in connection with this Agreement, and as further set forth on the Order Form, and any Technology provided by Upwork in connection with the operation and/or provision of such products and/or services, including access to the Platform.
- “Taxes” means taxes, duties, levies, tariffs, and other governmental charges, including, without limitation, VAT, GST and similar taxes.
- “Technology” means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, documentation, content, training materials, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information.
- “Term” has the meaning ascribed to it in the Order Form.
- “UTC” means Universal Time Coordinated.
- “Upwork Payroll Services” means a service provided by Upwork whereby Employment Provider will handle certain administrative and legal requirements relating to the hiring of the Freelancer, including offering, tracking and paying Freelancers legally-required sick leave, employment agreements, policies and notices, wage payment, payroll taxes, workers’ compensation, unemployment insurance, and Affordable Care Act (ACA), if applicable, in addition to any other benefits required by law.
- “Work Diary” means the feature on the Platform that acts as a visual record of each Freelancer’s hours and shows each Freelancer’s hours worked and work-in-progress screenshots.
- Platform Access. Subject to the terms and conditions of this Agreement, Upwork (i) shall use commercially reasonable efforts to make the Services available to Subscriber and (ii) grants to Subscriber a limited, terminable, non-exclusive, non-sublicensable (except as otherwise authorized herein), non-transferable (except as otherwise authorized herein) world-wide license to access and use the Platform to (a) access Subscriber’s Talent Cloud® network, (b) find and select Freelancers through the Platform, (c) receive and review Freelancer Services, and (d) approve Freelancer billing records or completed milestones and deliverables for payment by Upwork or the Employment Provider on behalf of Subscriber. During the Term, Upwork may modify the features and functionality of the Services.
- Worker Classification. Upwork will determine the appropriate worker classification (either independent contractor or employee) for each Freelancer based on the information that Subscriber and Freelancer provide about the applicable engagement between them. Determining the proper classification for a Freelancer depends on a variety of factors, including information in Subscriber’s control. If Upwork requests information within Subscriber’s knowledge or control related to the engagement, the classification of a Freelancer or otherwise, Subscriber will provide Upwork with the requested information in a timely, accurate, and complete manner and agrees to provide notice to Upwork immediately in the event that to Subscriber’s knowledge, any such information has changed.
- Freelancer Engagement. Upwork will, based on its worker classification: (i) engage the Freelancer as an independent contractor or (ii) hire the Freelancer as an employee. Upwork may delegate the engagement of Freelancers (and other obligations with respect to Freelancers under this Agreement) to one or more third parties. Upwork and Employment Provider reserve the right not to engage or hire a Freelancer in its sole discretion. Upwork will cause each Freelancer classified as an independent contractor to execute the Independent Contractor Agreement. If Freelancer is hired as an employee, Upwork will cause the Freelancer (through Employment Provider) to execute an employment agreement with confidentiality and intellectual property assignment provisions consistent with this Agreement.
- Custom Requirements. At Subscriber’s request, where legally permitted by local law and the applicable worker classification, and subject to separate fees, Upwork will establish and administer mutually-agreeable custom onboarding requirements, including background checks and drug tests.
- Legal Compliance. Upwork or Employment Provider, as applicable, will comply with applicable laws and regulations governing the engagement and payment of Freelancers, including laws related to worker classification and overtime pay (for any worker employed by Employment Provider) within the jurisdiction in which Freelancer Services will be provided; provided that accurate, complete, and current information regarding the engagement is provided to Upwork by Subscriber.
- Program Management and Other Services. From time to time, Subscriber may request Program Management services from Upwork via a signed order form or via electronic mail. If Subscriber requests Program Management services from Upwork, Subscriber authorizes Upwork personnel to access Subscriber’s Upwork Enterprise account and take actions on the Platform on behalf of Subscriber as directed by Subscriber, including without limitation, posting projects, preparing and extending offers to Freelancers on behalf of Subscriber, and releasing payments. Subscriber agrees that all actions performed by Program Management personnel in its Upwork Enterprise account shall be considered to be actions by Subscriber. Any use by Subscriber of Program Management services or other services listed on the Order Form will not alter, reduce or eliminate any Subscriber responsibilities under this Agreement. Any charged Program Management services are subject to the Service Fee.
- Affiliates. An Affiliate may receive services under this Agreement by directly entering into an order form with Upwork. By entering into an order form, each Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Subscriber agrees to be responsible for its Affiliates’ compliance with this Agreement and each Affiliate’s order form. All rights granted to an entity as an Affiliate hereunder will automatically and immediately cease as of the time such entity ceases to be an Affiliate.
- Freelancer Services.
- Hourly Work for Independent Contractors. For hourly work performed by Freelancers classified as independent contractors, Subscriber will have the opportunity to dispute the Freelancer billing entries as described by this paragraph. The Freelancer billing period begins Mondays at 00:00 midnight UTC and ends Sundays at 23:59 UTC (the “Weekly Billing Period”). Following each Weekly Billing Period, Subscriber has from Monday at 12 noon UTC until Friday at 23:59 UTC to review the Freelancer’s billing entries in their Work Diary and file a dispute through the Platform if Subscriber disputes the hours billed by the Freelancer (the “Subscriber Review Period”). If Subscriber does not file a dispute during the Subscriber Review Period, then (a) Subscriber will be deemed to have irrevocably approved the time billed and irrevocably accepted the work performed by the Freelancer during the time reflected on the Platform and (b) Upwork will be authorized and instructed to make payment to Freelancer for time reflected on the Platform.
- Hourly Work for Employees. For hourly work performed by Freelancers classified as employees, (y) Subscriber will be deemed to have automatically approved all hours worked, including overtime and (z) Subscriber authorizes and instructs Upwork to make payment to Freelancer for time reflected on any time sheet, including overtime payments. For Freelancers engaged by Upwork or Employment Provider as employees, Subscriber agrees to comply with all applicable laws (e.g., not requiring or encouraging any Freelancer to work without recording time, not discouraging or prohibiting Freelancers from taking any meal or rest periods authorized by law) and acknowledges and agrees that overtime wages are included in the Freelancer Payments and Costs to be reimbursed by Subscriber.
- Milestone Work. For deliverables-based work tied to milestones, Subscriber must approve or reject milestone approval requests through the Platform within 14 days after such approval requests are submitted through the Platform. Subscriber acknowledges and agrees that in the event Subscriber fails to approve or reject a submitted milestone approval request within such 14 day period, then (a) the deliverable reflected in the milestone approval request will be deemed irrevocably accepted by Subscriber, and any payment associated with the milestone will be deemed irrevocably approved by Subscriber and (b) Upwork will be authorized and instructed to make payment to Freelancer for such milestone.
- Workplace. Subscriber is responsible for the safety and protection of Freelancers, Subscriber’s other service providers, and Subscriber’s property while such Freelancers are performing Freelancer Services on Subscriber’s premises or at such other location(s) as designated by Subscriber. Subscriber will comply at all times with all applicable laws and regulations related to Freelancer’s performance of the Freelancer Services, including without limitation, laws and regulations related to work environment safety and conduct and laws related to illegal discrimination, harassment and retaliation.
- Sensitive Duties. Subscriber will bear the entire risk of allowing Freelancers to handle sensitive duties, financial instruments (including credit cards and electronic payments), and any personal information. If Subscriber assigns a Freelancer any supervisory duties or gives a Freelancer authority to sign tax returns, render accounting or legal opinions, issue negotiable instruments, or make final decisions of the nature of those generally made by Subscriber’s executives, officers, or directors, Subscriber (and not Upwork) is solely responsible for any such decisions or actions.
- Restrictions. Subscriber will not: (i) license, sublicense, sell, resell, distribute, transfer, assign or otherwise commercially exploit or make available to any third party, the Platform or the Services, except as expressly permitted herein; (ii) modify or make derivative works based on the Services or otherwise violate Upwork’s intellectual property rights in the Services; (iii) reverse engineer or access the Services for any reason that is not expressly authorized under this Agreement, including in order to (a) build a competitive product or service or access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Services; (iv) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material to the Services; (v) send or store material containing viruses, worms, Trojan horses, spam or other harmful computer code, files, scripts, agents or programs to or from the Services; (vi) interfere with or disrupt the integrity or performance of the Services or the data contained in it, including engaging in denial of service attacks; (vii) attempt to gain unauthorized access to the Services or its systems or networks; or (viii) use the Services in violation of applicable law.
- Enterprise Billing Services. Upwork will make, or cause to be made, Freelancer Payments and Costs on behalf of Subscriber in accordance with this Agreement. Upwork will bill Subscriber in arrears for all such payments made by Upwork and all applicable fees and costs. Subscriber’s ability to use Enterprise Billing services described in this section is subject to Upwork’s approval of a credit limit for Subscriber and limited by the amount of that approval. Upwork may at any time without notice, grant, deny, limit, extend, withdraw, increase or decrease credit to Subscriber at its sole discretion.
- Billing and Payment. Subscriber shall be responsible for and shall pay to Upwork the fees set forth in the Order Form in accordance with the terms and conditions contained therein, in addition to all Freelancer Payments and Costs. Subscriber shall pay all invoices within the time period stated on the Order Form, measured from the date of the invoice. Payment obligations are non-cancelable and non-refundable. Any late payments are subject to a finance charge of 2.0% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. All amounts in the Order Form and invoice are stated in, and shall be paid in, U.S. dollars. The pricing during any Renewal Term shall be the same as that during the prior Initial Term or Renewal Term, as applicable, unless Upwork has provided written notice of a price change at least thirty (30) days before the end of such prior Initial Term or Renewal Term, as applicable, in which case the pricing increase shall be effective upon the commencement of the Renewal Term. Billing for any pricing increases will commence in the month following the renewal month in which the Order Form was renewed.
- Freelancer Service Fee. Upwork charges Freelancers the service fee stated on the Platform. If a Freelancer is a BYO Freelancer or if the Freelancer is engaged via Upwork Payroll Services, Upwork will not charge a service fee to the Freelancer for any work the Freelancer performs for Subscriber.
- Upwork Payroll Services. If Subscriber requests Upwork to hire a Freelancer classified as an employee via Upwork’s Payroll Services, Subscriber will pay the Upwork Payroll Fee. In such case, the Standard Service Fee or BYO Service Fee, as applicable, will be applied to (i) Freelancer Payments and Costs and (ii) the Upwork Payroll Fee. The Upwork Payroll Fee and all Employment Related Costs will be provided to Subscriber prior to the Employment Provider hiring the relevant Freelancer.
- Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of Taxes. Subscriber shall be responsible for paying all Taxes associated with the services provided in this Agreement (without any offset or deduction to the fees paid to Upwork) other than U.S. Taxes based on Upwork’s net income. Subscriber agrees to hold Upwork harmless from all claims and liability arising from Subscriber’s failure to report or pay any such Taxes.
- Purchase Order. Notwithstanding any other provision in this Agreement, if Subscriber requires a PO to issue payment under this Agreement and Upwork has not received a copy of such PO, Upwork reserves the right to suspend Subscriber’s access to the Platform until such purchase order has been received. If Subscriber requires a valid PO number to be attached to or entered in an invoice submission to Subscriber’s portal, but a valid PO has not been provided to Upwork in a timely manner, the net payment term in the Service Order will be based on the date of the invoice generated by Upwork and not the date of invoice submission to Subscriber’s portal.
- Non-Circumvention. If an employee or agent of Subscriber directly or indirectly engages the services of a Platform Freelancer through a source other than Upwork during the Exclusivity Period, Subscriber agrees to pay Upwork ten thousand dollars ($10,000) for each such Freelancer. If upon Subscriber’s request, Upwork finds a Freelancer that was not on the Platform and Subscriber engages such Freelancer through a source other than Upwork, Subscriber agrees to pay Upwork ten thousand dollars ($10,000) for each such Freelancer.
- Term. This Agreement will begin on the Effective Date and will continue until through the duration of the Term unless terminated in accordance with this Agreement.
- Termination. Upon a material breach of this Agreement by either Party, the non-breaching Party may terminate this Agreement immediately if such default continues and is not remedied within thirty (30) days following written notice of default from the non-breaching Party. Either Party will have the right to terminate this Agreement immediately if the other Party (i) becomes subject to any bankruptcy or insolvency proceeding under federal or state statute that is not dismissed within 30 days, (ii) becomes subject to direct control by a trustee, receiver or similar authority, or (iii) has wound up or liquidated, voluntarily or otherwise. Notwithstanding the foregoing, Upwork has the right to immediately suspend or terminate Subscriber’s account and this Agreement if Upwork does not receive payment from Subscriber by the due date in this Agreement and all amounts owed under the Agreement will become immediately due.
- Post-Termination Obligations. Except for Subscriber’s termination under the “Termination” section above, if Subscriber terminates its subscription to the Services or this Agreement prior to the end of the Term, in addition to other amounts Subscriber may owe Upwork, Subscriber will immediately pay any then unpaid Subscription Fees associated with the remainder of the current Term.
- Effect of Termination and Survival. As of the date either Party provides notice of termination to the other, Subscriber will no longer be able to engage Freelancers for new jobs via the Platform. All projects in a working status as of the date such notice is provided (each a “Final Engagement”) will remain active until completed, even if completion of the Final Engagement follows the termination date, unless otherwise agreed by the Parties and the affected Freelancer(s). Notwithstanding any termination of this Agreement, Subscriber remains responsible for payment of all fees and payments owed to Upwork under this Agreement, including any Freelancer Payments and Costs. The sections and subsections titled “Fees and Payments”, “Effect of Termination and Survival”, “Intellectual Property”, “Representations, Warranties and Disclaimers”, “Confidentiality”, “Indemnification”, “Limitation of Liability”, “Miscellaneous” and all of Subscriber’s outstanding obligations, will survive any termination or expiration of this Agreement.
- Representations and Warranties. Each Party represents and warrants that: (i) it is a corporation duly organized and validly existing under the laws of the jurisdiction in which it is incorporated; (ii) it has full corporate power and authority, and has obtained all corporate approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
- Subscriber Acknowledgements. Other than as stated in this Agreement, Subscriber expressly acknowledges, agrees, and understands that: (a) Subscriber will comply with all applicable law; (b) Upwork is not a party to the dealings between Subscriber and Freelancer, including posts, proposals, selection, contracting, and performance of Freelancer Services; (c) Upwork does not, in any way, supervise, direct, or control the Freelancer or Freelancer Services; (d) Upwork makes no representations as to the quality, security, or legality of any Freelancer Services, and Upwork disclaims any and all liability relating thereto; (e) Upwork does not introduce Freelancers to clients (including Subscriber) or help Freelancers find engagements; (f) Upwork merely makes the Platform available to enable Freelancers to identify and determine the suitability of clients at Freelancers’ discretion and to enable clients, such as Subscriber, to identify and determine the suitability of Freelancers at Subscriber’s discretion; (g) Upwork does not set Freelancer’s work hours, work schedules, or location of work, nor is Upwork involved in determining if the Freelancer fees will be set at an hourly or fixed rate for a project; (h) Upwork will not provide Freelancer with training or any equipment, labor, or materials needed for a particular project (i) Upwork does not provide the premises at which the Freelancer will perform the work; (j) if there is a dispute between Subscriber and Freelancer, that dispute is solely between Subscriber and the Freelancer and Upwork will not be responsible or liable with respect to such dispute. Upwork makes no representations about, and does not guarantee the truth or accuracy of Freelancer’s listings on the Platform; the ability of Freelancers to deliver the Freelancer Services; or that Subscriber or Freelancer can or will actually complete a transaction.
- Subscriber Responsibilities for Freelancers Hired as Employees. In addition to Subscriber’s responsibilities set forth herein, if a Freelancer is classified as an employee by Upwork, Subscriber shall: (a) not request or allow the Freelancer to commence work until Subscriber receives notice from Upwork or its Employment Provider that employment paperwork has been completed and employment has started; (b) absent exigent circumstances, (i) provide at least 72 hours advance notice before terminating a worker’s employment assignment, or (ii) immediately provide notice of any voluntary termination; otherwise, Subscriber will be responsible for any penalties or costs for violating or complying with laws governing final paycheck requirements; and (c) immediately inform Upwork of any request for a leave of absence or disability accommodation or if Subscriber becomes aware of a potential disability or need for leave or accommodation and provide any legally protected accommodation or leave.
- Actions Affecting Freelancers. Subscriber will ensure (i) that Subscriber’s benefit plans for Subscriber’s U.S.-based employees (including without limitation retirement plans, insurance plans, stock plans, stock option plans, and any plan governed by the Consolidated Omnibus Reconciliation Act (COBRA), the Health Insurance Portability and Accountability Act (HIPAA) and/or the Employee Retirement Income Security Act (ERISA)) all contain provisions expressly excluding eligibility for individuals who are not paid directly by Subscriber or an affiliate of Subscriber; (ii) that Subscriber owns or has necessary licenses to all content that Subscriber posts to the Platform or provides to Freelancers for jobs or via the Platform; (iii) that Subscriber will not direct or exercise any control over a Freelancer that is classified as an independent contractor; (iv) Subscriber will not enter into any agreement or provide Freelancers with any document, including provision of a code of conduct or amendment of contract terms, that could affect the classification of a Freelancer without prior approval from Upwork; and (v) all information provided by Subscriber to Upwork regarding Subscriber and the engagements on the Platform will be accurate and Subscriber will update all such information on the Platform or provide notice to Upwork immediately to the extent Subscriber is aware that such information has changed.
- Freelancer Information. Upwork does not independently evaluate, investigate, or otherwise conduct any due diligence regarding Freelancers, their resumes, qualifications, skills, background, or prior experience. Accordingly, Upwork makes no representations as to the reliability, capability, background, identity or qualifications of any Freelancer. Freelancer Information posted on or to the Platform (including the Talent Cloud) is intended to be illustrative only and is not intended to be a guarantee or warranty on the part of Upwork. Upwork is not responsible for and will have no liability for Subscriber’s use of or reliance on any Freelancer Information, and Subscriber acknowledges and agrees that Subscriber will be solely responsible for undertaking the necessary research and due diligence and/or having the proper knowledge, skill, and experience to evaluate the Freelancer Information.
- Disclaimer. UPWORK, ITS AFFILIATES AND PARTNERS HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE OF ACCURACY, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE WITH RESPECT THERETO, THOSE MADE BY A FREELANCER TO SUBSCRIBER OR RELATING TO ANY SERVICE, DELIVERABLE OR WORK PRODUCT PROVIDED BY A FREELANCER TO SUBSCRIBER. THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS. LIABILITY FOR FREELANCER’S WORK PRODUCT AND THE FREELANCER SERVICES ARE SOLELY THAT OF THE FREELANCER. NEITHER UPWORK NOR ANY OF ITS AFFILIATES OR PARTNERS PROVIDE ANY EXPRESS WARRANTY OF, HAVE ANY IMPLIED WARRANTY OF, OR HAVE ANY RESPONSIBILITY FOR, FREELANCER SERVICES OR FREELANCER WORK PRODUCT.
- Confidential Information. All information disclosed by one Party (the “Discloser”) to the other (the “Recipient”) that (i) is marked “confidential” or “proprietary” before its disclosure to the Recipient; or (ii) the Discloser orally discloses to the Recipient, identifies as confidential or proprietary at the time of disclosure, and confirms to be such in writing within 10 days of such disclosure is “Confidential Information” under this Agreement. Confidential Information does not include information which: (i) is now, or later becomes, through no act or failure to act on the part of the Recipient, generally known or readily available to the public; (ii) was acquired by the Recipient before receiving such information from the Discloser and without restriction as to use or disclosure; (iii) is furnished to the Recipient by a third party rightfully entitled to it, without restriction as to use or disclosure; or (iv) was independently developed by the Recipient without reference to the Discloser’s Confidential Information. This Agreement, its terms and all exhibits, is the Confidential Information of Upwork.
- Use and Restrictions. The Recipient agrees: (i) to hold the Discloser’s Confidential Information in strict confidence, (ii) not to disclose the Discloser’s Confidential Information to any third parties except as reasonably necessary for the Recipient to perform its obligations hereunder, and (iii) not to use any of the Discloser’s Confidential Information except to perform the Recipient’s obligations under this Agreement. Notwithstanding the foregoing, the Recipient hereto may disclose any Confidential Information of the Discloser hereunder to the Recipient’s agents, attorneys and other representatives (under a duty not to disclose) and having a bona fide need to know such Confidential Information or any court of competent jurisdiction as reasonably required to resolve any dispute between the Parties. In addition, Upwork may disclose Subscriber’s Confidential Information to any Freelancer engaged under this Agreement so long as (i) such disclosure is reasonably required for the Freelancer to perform Freelancer Services, and (ii) the Freelancer has entered into an agreement related to such Confidential Information with terms at least as restrictive as those in this Agreement.
- Legal Obligations. If Recipient is requested or required by law, government action, subpoena or other court order to disclose any of the Discloser’s Confidential Information, Recipient may disclose such information without liability under this Agreement, provided that (i) the Discloser has been given a reasonable opportunity to (a) intervene in any proceeding to try to protect the Confidential Information and (b) review the text or contents of such disclosure before it is made; and (ii) the disclosure is limited to only the Confidential Information specifically required to be disclosed.
- Remedies. Each Party agrees that its obligations provided in this sections under Confidential Information are necessary and reasonable in order to protect the Discloser and its business, and each Party expressly agrees that monetary damages may be inadequate to compensate the Discloser for any breach by the Recipient of its confidentiality covenants and agreements set forth in this Agreement. Accordingly, each Party agrees and acknowledges that any such breach or threatened breach may cause irreparable injury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Recipient, without the necessity of proving actual damages or posting any bond.
- Indemnification by Upwork. Upwork will indemnify, defend and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all Claims and any and all losses, damages, liabilities, judgments, or settlements awarded for such Claims, that are based on: (a) Upwork’s misclassification of a Freelancer under applicable employee/contractor classification laws and regulations; (b) Upwork or Employment Provider’s failure to make, when due, a payment to a Freelancer related to this Agreement; (c) Employment Provider’s failure to comply with applicable wage and hour laws or regulations; or (d) Employment Provider’s violation of any law or regulation related to workplace safety or conduct, including laws related to illegal discrimination or harassment. Upwork will further indemnify, defend and hold harmless Subscriber and its directors, officers, agents and employees from and against any and all Claims and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims, arising out of, resulting from or in connection with any infringement or alleged infringement of U.S. intellectual property rights due to Subscriber’s use of the Platform or Services, excluding infringement or alleged infringement that arises or results from (i) Subscriber’s use of the Services or Platform in a way not authorized by Upwork; (ii) any modification to the Platform made by Upwork under specifications provided by Subscriber; (iii) use of the Services or Platform in combination with any other service, platform, process or materials with which the Services or Platform is not intended to be combined; (iv) Subscriber’s continued use of the infringing or allegedly infringing Services or Platform after Subscriber has been provided with modifications or other remedies to avoid the alleged infringement; (v) Freelancer Services or (vi) Freelancer Work Product.
- Indemnification by Subscriber. Subscriber will indemnify, defend and hold harmless Upwork and its directors, officers, agents and employees from and against any and all Claims, and/or any and all losses, costs, damages, liabilities, judgments, or settlements awarded for such Claims, based on (i) Subscriber’s violation of any law or regulation, including laws related to illegal discrimination or harassment; (ii) misclassification of a Freelancer under applicable employee/Freelancer classification laws and regulations based on inaccurate or incomplete information provided to Upwork by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iii) Subscriber’s failure to comply with applicable wage and hour laws or regulations or any such failure by Upwork or the Employment Provider based on inaccurate or incomplete information provided by Subscriber or which Subscriber failed to update or was caused by Subscriber; (iv) the misuse or unauthorized use of the Platform; (v) Subscriber’s direction, participation or involvement with the Freelancer or Freelancer Services; and (vi) Subscriber’s breach of its obligations in Section 6(c) (Actions Affecting Freelancers).
- Indemnification Requirements. The indemnification obligations of each Party (the “Indemnifying Party”) are contingent upon the other Party (the “Indemnified Party”) providing the Indemnifying Party with: (i) prompt written notice of any Claim for which indemnification may be sought under this Agreement; (ii) control over the defense and settlement of any such Claim with counsel of the Indemnifying Party’s choice; and (iii) proper and full information and assistance, at the Indemnifying Party’s expense and request, to settle or defend any such Claim. Each Indemnified Party will be entitled to participate in, through its own counsel at its own cost and expense, but not to determine or conduct, any defense or settlement of a Claim.
- Records and Audit. Upwork will maintain reasonable records related to the engagement of Freelancers under this Agreement (“Engagement Records”) for at least five years following the termination of the Freelancer’s work for Subscriber. Subject to restrictions imposed by laws and regulations related to the privacy of the Freelancer, Subscriber, at its sole cost and expense and no more than once per calendar year, may audit Engagement Records at any time during Upwork’s normal business hours after providing Upwork with 15 days written notice of such audit. Such Engagement Records will automatically be deemed Upwork’s Confidential Information and any outside auditor engaged by Subscriber with respect to such audit will (i) be reasonably acceptable to Upwork; and (ii) enter into a confidentiality and non-use agreement in such form provided by Upwork with respect to the Engagement Records.
- Service Delivery. Notwithstanding any other provision in this Agreement, Upwork has the right, in its sole discretion, to provide one or more services described in this Agreement through Upwork, any other Upwork affiliate, or other third party service provider.
- Governing Law. This Agreement will in all respects be is governed by the laws of the State of California and the United States of America without reference to its principles of conflicts of laws. The Parties hereby agree that all disputes arising out of this Agreement will be subject to the exclusive jurisdiction of and venue in the federal and state courts within Santa Clara County, California and Subscriber hereby consents to the personal and exclusive jurisdiction and venue of these courts and waives any objection to venue in such courts and any claim that such forum is an inconvenient forum.
- Assignment. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Subscriber may not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Upwork’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void. Upwork may assign this Agreement to any affiliate or successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.
- Entire Agreement. This Agreement represents the entire agreement between the Parties, and supersedes all prior agreements and understandings with respect to the matters herein. Subject to the terms of this Agreement, no amendment to this Agreement will be effective unless in writing signed by both Parties; provided, however, Upwork may amend the Independent Contractor Agreement from time to time in its sole discretion in light of legal requirements or changes to the Platform provided no such modification adversely changes the rights or obligations of Subscriber. This Agreement hereby incorporates by reference all policies posted on the Platform, as may be modified by Upwork from time to time in its sole discretion. In the event of a conflict between this Agreement and the other policies, this Agreement will control. In the event of a conflict between this Agreement and an Order Form, the terms of the Order Form will govern to the extent of the conflict. The Parties may execute this Agreement in counterparts, which taken together will constitute one instrument. No provision of any pre-printed order form, purchase order, click-through process, or other business form employed by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
- Force Majeure. Excluding Subscriber’s obligation to make payments to and/or reimburse Upwork hereunder, both Parties shall be excused from performance under this Agreement to the extent that either Party is prevented from performing or is unable to perform any of its obligations under this Agreement as a result of causes beyond its reasonable control, including without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of facilities, riot, insurrection, material unavailability, telecommunications or internet failures, acts of the government, governmental requirements and regulations or restrictions imposed by law, if such Party has used its commercially reasonable efforts to mitigate its effects, such Party will give prompt written notice to the other Party. In such event, the time for the performance will be extended for the period of delay or inability to perform due to such occurrences.
- Severability. If any provision of this Agreement is held to be invalid or unenforceable, the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Waiver. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
- Notices. All notices permitted or required under this Agreement must be in writing and will be delivered by electronic mail, in person or mailed by first class, registered or certified mail, postage prepaid, or by any nationally reputable overnight courier able to provide a receipt of delivery, to the address of the Party specified in this Agreement, such other address as either Party may specify in writing or such address the Party sending the notice has on file. Such notice will be deemed to have been given upon receipt.
- Independent Contractor. Neither Party will be deemed to be an agent of the other Party and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
- Electronic Signatures. The Parties consent to the use of electronic signatures for purposes of signing this Agreement, intending to become legally bound.
- Export Law Assurances. Subscriber understands that the deliverables provided to Subscriber under this Agreement may be subject to export control laws and regulations. SUBSCRIBER MUST NOT EXPORT OR RE-EXPORT ANY FREELANCER WORK PRODUCT OR ANY INFORMATION OR TECHNOLOGY UNDERLYING THE FREELANCER WORK PRODUCT OR FREELANCER SERVICES EXCEPT IN FULL COMPLIANCE WITH ALL UNITED STATES AND OTHER APPLICABLE LAWS AND REGULATIONS, INCLUDING WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS.
- Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing Party will be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.
Upwork Digital Accessibility Statement
Effective July 3, 2019
DownloadTable of Contents
Upwork Direct Contracts Terms (BETA)
Effective November 14, 2019
DownloadTable of Contents
1. HOW IT WORKS
2. ELIGIBILITY
3. FEES
4. ESCROW SERVICES
5. ROLE OF UPWORK AND USER RESPONSIBILITIES
6. OTHER TERMS
Effective November 14, 2019 to November 14, 2019
DownloadTable of Contents
1. HOW IT WORKS
2. ELIGIBILITY
3. FEES
4. ESCROW SERVICES
5. ROLE OF UPWORK AND USER RESPONSIBILITIES
6. OTHER TERMS
Effective November 14, 2019 to November 14, 2019
DownloadTable of Contents
1. HOW IT WORKS
2. ELIGIBILITY
3. FEES
4. ESCROW SERVICES
5. ROLE OF UPWORK AND USER RESPONSIBILITIES
6. OTHER TERMS
Direct Contract Escrow Instructions
Effective November 14, 2019
DownloadTable of Contents
If a Client and a Freelancer enter into a Direct Contract, these Direct Contract Escrow Instructions (“Escrow Instructions”) apply. These Escrow Instructions govern Direct Contract Escrow Accounts. Service Contracts are governed by the applicable escrow instructions.
To the extent permitted by applicable law, we may modify these Escrow Instructions without prior notice to you, and any revisions to these Escrow Instructions will take effect when posted on the Site unless otherwise stated. Please check the Site often for updates.
These Escrow Instructions hereby incorporate by reference the Terms of Service (“Terms of Service”). Capitalized terms not defined in these Escrow Instructions are defined in the User Agreement, elsewhere in the Terms of Service, or have the meanings given such terms on the Site. These Escrow Instructions do not apply to Fixed-Price Contracts or Hourly Contracts.
1. DIGITAL SIGNATURE
By clicking to to accept a Direct Contract, Client and Freelancer are deemed to have executed these Escrow Instructions electronically, effective on the date Client clicks to accept the Direct Contract, pursuant to California Civil Code section 1633.8 and the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Sec. 7001, et seq., as may be amended from time to time (the "E-Sign Act"). Doing so constitutes an acknowledgement that you are able to electronically receive, download, and print these Escrow Instructions.
2. RELEASE AND DELIVERY OF AMOUNTS IN ESCROW
Client and Freelancer irrevocably authorize and instruct Upwork Escrow Inc. (“Upwork Escrow“) to release applicable portions of the Direct Contract Escrow Account (each portion, a “Release”) to their Freelancer Escrow Account or Client Escrow Account, as applicable, upon the occurrence of and in accordance with one or more Release Conditions provided below or as otherwise required by applicable law or the Terms of Service. If the funds are released to the Client Escrow Account, they will be automatically returned to the Client’s Payment Method that was charged to fund escrow. The amount of the Release will be delivered to the applicable Escrow Account in accordance with Freelancer’s or Client’s instructions, as applicable, these Escrow Instructions, and the other Terms of Service.
2.1 RELEASE CONDITIONS
As used in these Escrow Instructions, “Release Condition” means any of the following:
- Client clicks to release funds to Freelancer.
- Client does not take any action for 14 days from the date of a Freelancer’s Release request, in which case Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount associated with to the applicable milestone in connection with such Release request.
- Freelancer or Client cancels the contract before a payment has been released to Freelancer, in which case the funds are to be returned to the Client.
- Issuance of the final order of a court or arbitrator of competent jurisdiction from which appeal is not taken, in which case the funds will be released in accordance with such order.
- We believe, in our sole discretion, that fraud, an illegal act, or a violation of Upwork's Terms of Service has been committed or is being committed or attempted, in which case Client and Freelancer irrevocably authorize and instruct Upwork Escrow to take such actions as we deem appropriate in our sole discretion and in accordance with applicable law, in order to prevent or remedy such acts, including without limitation to return the funds associated with such acts to their source of payment.
3. INSTRUCTIONS IRREVOCABLE
On the occurrence of a Release Condition, Client and Freelancer are deemed to and hereby agree that the instruction to Upwork Escrow and its wholly owned subsidiaries to release funds is irrevocable. Without limiting the foregoing, Client’s instruction to Upwork Escrow and its wholly owned subsidiaries to pay a Freelancer is irrevocable. Such instruction is Client’s authorization to transfer funds to Freelancer from the Client Escrow Account or authorization to charge Client’s Payment Method. Such instruction is also Client’s representation that Client has received, inspected and accepted the subject work or expense. Client acknowledges and agrees that upon receipt of Client’s instruction to pay Freelancer, Upwork Escrow will transfer funds to the Freelancer and that Upwork, Upwork Escrow, and other Affiliates have no responsibility to and may not be able to recover such funds. Therefore, and in consideration of services described in this Agreement, Client agrees that once Upwork Escrow or its subsidiary has charged Client’s Payment Method, the charge is non-refundable.
4. DORMANT ENGAGEMENTS
To be fair to Clients and Freelancers, Upwork has a procedure for Direct Contracts that appear Dormant (as defined below). For purposes of determining Dormant status, “activity” means business term or milestone updates or requests, Direct Contract Escrow Funding, Release requests, or requests to close the Contract.
A "Dormant Engagement" is a Direct Contract that has a Direct Contract Escrow Account with a balance but has had no activity for 90 consecutive days after the last milestone date contained in the business terms. Dormant Engagements are subject to the following rules:
- Upwork will notify Client when the Direct Contract becomes dormant (“Dormant Date”).
- If no activity other than Release requests has occurred within 7 days after the Dormant Date, Upwork will notify the Freelancer that the Direct Contract is Dormant.
- If neither Freelancer nor Client take any action for 7 days after the Dormant Date, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release escrow funds to Client.
- If Freelancer submits a Release request and client does not take any action for 14 days from the date of the Release request, Freelancer and Client agree that Upwork Escrow is authorized and irrevocably instructed to immediately release to Freelancer the amount related to the milestone with Release request.
- All funds released to Freelancer under this Section, Dormant Engagements, will be subject to the applicable Fees as described in the Direct Contract Terms.
5. REFUNDS AND CANCELLATIONS
Client and Freelancer are encouraged to come to a mutual agreement if refunds or cancellations are necessary. If there are no funds in escrow, Freelancer may issue a refund up to the full amount paid on the Direct Contract.
6. NOTICES
All notices to a User required by these Escrow Instructions will be made via email sent by Upwork to the User’s registered email address. Users are solely responsible for maintaining a current, active email address registered with Upwork, for checking their email and for responding to notices sent by Upwork to the User’s registered email address.
7. ABUSE
Upwork, in its sole discretion, reserves the right to suspend or terminate your Account immediately upon giving notice to you if Upwork believes you may be abusing the Dispute Assistance Program or as otherwise permitted by the Terms of Service. However, any Disputes for any Fixed-Price Contracts that existed prior to termination will be subject to the Terms of Service.













